52001AG0032

Common Position (EC) No 32/2001

adopted by the Council on 23 July 2001

with a view to adopting Directive 2001/.../EC of the European Parliament and of the Council of ... amending Council 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

(Text with EEA relevance)

(2001/C 307/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community and, in particular, Article 141(3) 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 laid down in Article 251 of the Treaty(3),

Whereas:

(1) In accordance with Article 6 of the Treaty on European Union, the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States, and shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

(2) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all Forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories.

(3) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(4) Equality between women and men is a fundamental principle, under Articles 2 and 3(2) of the EC Treaty and the case-law of the Court of Justice. These Treaty provisions proclaim equality between women and men as a "task" and an "aim" of the Community and impose a positive obligation to "promote" it in all its activities.

(5) Article 141 of the Treaty, and in particular paragraph 3, addresses specifically equal opportunities and equal treatment of men and women in matters of employment and occupation.

(6) Council Directive 76/207/EEC(4) does not define the concepts of direct or indirect discrimination. On the basis of Article 13 of the Treaty, the Council adopted Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin(5) and Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation(6) which define direct and indirect discrimination. Thus it is appropriate to insert definitions consistent with these Directives in respect of sex.

(7) This Directive does not prejudice freedom of association, including the right to establish unions with others and to join unions to defend one's interests. Measures within the meaning of Article 141(4) of the Treaty may include membership or the continuation of the activity of organisations or unions whose main objective is the promotion, in practice, of the principle of equal treatment between women and men.

(8) Harassment related to the sex of a person and sexual harassment are contrary to the principle of equal treatment between women and men; it is therefore appropriate to define such concepts and to prohibit such forms of discrimination. To this end it must be emphasised that these forms of discrimination occur not only in the workplace, but also in the context of access to employment and vocational training, during employment and occupation.

(9) The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence. According to the case-law of the Court of Justice(7), discrimination involves the application of different rules to a comparable situation or the application of the same rule to different situations.

(10) The occupational activities that Member States may exclude from the scope of Directive 76/207/EEC should be restricted to those which necessitate the employment of a person of one sex by reason of the nature of the particular occupational activities concerned, provided that the objective sought is legitimate, and subject to the principle of proportionality as laid down by the case-law of the Court of Justice(8).

(11) The Court of Justice has consistently recognised the legitimacy, in terms of the principle of equal treatment, of protecting a woman's biological condition during and after pregnancy. It has moreover consistently ruled that any unfavourable treatment of women related to pregnancy or maternity constitutes direct sex discrimination. This Directive is therefore without prejudice to Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (10 individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)(9), which aims to ensure the protection of the physical and mental state of women who are pregnant, women who have recently given birth or women who are breastfeeding. The preamble to Directive 92/85/EEC provides that the protection of the safety and health of pregnant workers, workers who have recently given birth or workers who are breastfeeding should not involve treating women who are on the labour market unfavourably nor work to the detriment of Directives concerning equal treatment for men and women. The Court of Justice has recognised the protection of employment rights of women, in particular their right to return to the same or an equivalent job, with no less favourable working conditions, as well as to benefit from any improvement in working conditions to which they would be entitled during their absence.

(12) In the resolution of the Council and of the Ministers for Employment and Social Policy meeting within the Council of 29 June 2000 on the balanced participation of women and men in family and working life(10), Member States were encouraged to consider examining the scope for their respective legal systems to grant working men an individual and untransferable right to paternity leave, while maintaining their rights relating to employment. In this context, it is important to stress that it is for the Member States to determine whether or not to grant such a right and also to determine any conditions, other than dismissal and return to work, which are outside the scope of this Directive.

(13) Article 141(4) of the Treaty enables Member States to maintain or adopt measures providing for specific advantages in favour of the under-represented sex; given the current situation, and bearing in mind Declaration 28 to the Amsterdam Treaty, Member States should, in the first instance, aim at improving the situation of women in working life.

(14) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of one sex. Such measures permit organisations of persons of one sex where their main object is the promotion of the special needs of those persons and the promotion of equality between women and men.

(15) The principle of equal pay for men and women is already firmly established by Article 141 of the Treaty and Council Directive 75/117/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(11) and is consistently upheld by the case-law of the Court of Justice; the principle constitutes an essential and indispensable part of the acquis communautaire concerning sex discrimination.

(16) The Court of Justice has ruled that, having regard to the fundamental nature of the right to effective judicial protection, employees enjoy such protection even after the employment relationship has ended(12).

(17) The Court of Justice has ruled that, in order to be effective, the principle of equal treatment implies that, whenever it is breached, the compensation awarded to the employee discriminated against must be adequate in relation to the damage sustained. It has furthermore specified that fixing a prior upper limit may preclude effective compensation and that excluding an award of interest to compensate for the loss sustained is not allowed(13).

(18) According to the case law of the Court of Justice, national rules relating to time limits for bringing actions are admissible provided that they are not less favourable than time limits for similar actions of a domestic nature and that they do not render the exercise of rights conferred by the Community law impossible in practice.

(19) Persons who have been subject to discrimination based on sex should have adequate means of legal protection. To provide a more effective level of protection, associations, organisations and other legal entities should also be empowered to engage in proceedings, as the Member States so determine, either on behalf or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts.

(20) Member States should promote dialogue between the social partners and, within the framework of national practice, with non-governmental organisations to address different forms of discrimination based on sex in the workplace and to combat them.

(21) Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obligations under Directive 76/207/EEC.

(22) In accordance with the principle of subsidiarity as set out in Article 5 of the Treaty, the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary for that purpose.

(23) Directive 76/207/EEC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 76/207/EEC is amended as follows:

1. In Article 1, the following paragraph shall be inserted:

"1a. Member States shall actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities in the areas referred to in paragraph 1".

2. Article 2 is amended as follows:

(a) In paragraph 1, the following subparagraphs shall be added:

"For the purposes of the first subparagraph:

(a) direct discrimination shall be taken to occur where one person is treated less favourably on grounds of sex than another is, has been, or would be treated in a comparable situation;

(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Harassment shall be deemed to be discrimination within the meaning of the first subparagraph when unwanted conduct related to the sex of a person takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Sexual harassment, which manifests itself as unwanted conduct of a sexual nature expressed physically, verbally or non-verbally, constitutes a specific form of harassment.

A person's rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person.

An instruction to discriminate against persons on grounds of sex shall be deemed to be discrimination within the meaning of the first subparagraph.";

(b) paragraph 2 shall be replaced by the following:

"2. Member States may provide, as regards access to employment including the training leading thereto, that a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.";

(c) In paragraph 3, the following subparagraphs shall be added:

"A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.

This Directive shall also be without prejudice to the provisions of Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC(14) and of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (10th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)(15). It is also without prejudice to the right of Member States to recognise a distinct right to paternity leave. Those Member States which recognise such a right shall take the necessary measures to protect working men against dismissal due to exercising that right and ensure that, at the end of such leave, they shall be entitled to return to their jobs or to equivalent posts on terms and conditions which are no less favourable to them.";

(d) paragraph 4 shall be replaced by the following:

"4. Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in practice between men and women".

3. Article 3 shall be replaced by the following:

"Article 3

1. Application of the principle of equal treatment means that there shall be no direct or indirect discrimination on the grounds of sex in the public or private sectors, including public bodies, in relation to:

(a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;

(c) employment and working conditions, including dismissals, as well as pay as provided for in Directive 75/117/EEC;

(d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.

2. To that end, Member States shall take the necessary measures to ensure that:

(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished;

(b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers' and employers' organisations are, or may be, declared null and void or are amended".

4. Articles 4 and 5 shall be deleted.

5. Article 6 shall be replaced by the following:

"Article 6

1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.

2. Member States shall introduce into their national legal systems such measures as are necessary to ensure a real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of discrimination contrary to Article 3, in a way which is dissuasive and proportionate to the damage suffered.

3. Member States shall ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive.

4. Paragraphs 1 and 3 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equal treatment".

6. Article 7 shall be replaced by the following Article:

"Article 7

Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment".

7. The following Articles shall be inserted:

"Article 8a

1. Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of sex. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

2. Member States shall ensure that the competences of these bodies include:

(a) without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 6(3), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination;

(b) conducting independent surveys concerning discrimination;

(c) publishing independent reports and making recommendations on any issue relating to such discrimination.

Article 8b

1. Member States shall, in accordance with national traditions and practice, take adequate measures to promote social dialogue between the social partners with a view to fostering equal treatment, including through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices.

2. Where consistent with national traditions and practice, Member States shall encourage the social partners, without prejudice to their autonomy, to promote equality between women and men and to conclude, at the appropriate level, agreements laying down anti-discrimination rules in the fields referred to in Article 1 which fall within the scope of collective bargaining. These agreements shall respect the minimum requirements laid down by this Directive and the relevant national implementing measures.

Article 8c

Member States shall encourage dialogue with appropriate non-governmental organisations which have, in accordance with their national law and practice, a legitimate interest in contributing to the fight against discrimination on grounds of sex with a view to promoting the principle of equal treatment.

Article 8d

Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive, and shall take all measures necessary to ensure that they are applied.

The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by ...(16) at the latest and shall notify it without delay of any subsequent amendment affecting them.

Article 8e

1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive".

Article 2

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(17) at the latest or shall ensure, by that date at the latest, that management and labour introduce the requisite provisions by way of agreement. Member States shall take all necessary steps to enable them at all times to guarantee the results imposed by this Directive. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. The Member States shall communicate to the Commission, within three years of the entry into force of this Directive, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive.

3. Without prejudice to paragraph 2, Member States shall communicate to the Commission, every five years, the texts of laws, regulations and administrative provisions of any measures adopted pursuant to Article 141(4) of the Treaty. On the basis of that information, the Commission will adopt and publish every five years a report establishing a comparative assessment of any such measures.

Article 3

This Directive shall enter into force on the day of its publication in the Official Journal of the European Community.

Article 4

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 337 E, 28.11.2000, p. 204.

(2) OJ C 123, 25.4.2001, p. 81.

(3) Opinion of the European Parliament of 31 May 2001 (not yet published in the Official Journal), Council Common Position of 23 July 2001 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(4) OJ L 39, 14.2.1976, p. 40.

(5) OJ L 180, 19.7.2000, p. 22.

(6) OJ L 303, 2.12.2000, p. 16.

(7) Case C-394/96 Brown, [1998] ECR I-4185, Case C-342/93 Gillespie, [1996] ECR I-475.

(8) Case C-222/84 Johnston, [1986] ECR 1651, Case C-273/97 Sirdar [1999] ECR I-7403 and Case C-285/98 Kreil [2000] ECR I-69.

(9) OJ L 348, 28.11.1992, p. 1.

(10) OJ C 218, 31.7.2000, p. 5.

(11) OJ L 45, 19.2.1975, p. 19.

(12) Case C-185/97, Coote [1998] ECR I-5199.

(13) Case C-180/95, Draehmpaehl, [1997] ECR I-2195, Case C271/91, Marshall [1993] ECR I-4367.

(14) OJ L 145, 19.6.1996, p. 4.

(15) OJ L 348, 28.11.1992, p. 1.

(16) Three years from the date of entry into force of this Directive.

(17) Three years from the date of entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 12 July 2000, the Commission submitted to the Council, on the basis of Article 141 of the Treaty establishing the European Community, a proposal for a Directive of the European Parliament and of the Council amending 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. Acting in accordance with Article 251 of the Treaty, the European Parliament delivered its first-reading opinion on 31 May 2001.

The Economic and Social Committee delivered its opinion on 5 December 2000.

3. The Commission submitted to the Council, in a letter dated 8 June 2001, an amended proposal incorporating certain European Parliament amendments.

4. On 11 June 2001, the Council recorded unanimous political agreement on a draft Common Position.

5. The Council adopted its Common Position on 23 July 2001, in accordance with Article 250 of the EC Treaty.

II. OBJECTIVE

The purpose of this proposal is to modernise the provisions of the existing text, which is now 25 years old.

III. ANALYSIS OF THE COMMON POSITION

1. GENERAL OBSERVATIONS

In its initial proposal the Commission wished to take account of the voluminous case-law of the Court of Justice of the European Communities, to which some 40 judgments had been added since Directive 76/207/EEC entered into force, and of the amendments made to the Treaty with regard to equal treatment for men and women.

When examining the Commission's initial proposal the Council also took account of the two Directives it had adopted in June and November 2000 on the basis of Article 13 of the Treaty relating to non-discrimination (Directives 2000/43/EC and 2000/78/EC). The Council therefore welcomed the fact that the European Parliament had proposed a number of amendments along those lines, which the Commission incorporated in its amended proposal.

In many instances the Council was prompted by the wish to have a coherent set of instruments to combat all the forms of discrimination referred to in Article 13 of the Treaty, and to promote the principle of equal treatment under Article 141 of the Treaty.

2. AMENDMENTS MADE BY THE EUROPEAN PARLIAMENT

The European Parliament adopted 46 amendments.

2.1. European Parliament amendments rejected by the Commission

The Commission did not incorporate eight of Parliament's amendments in its amended proposal, namely amendments 4, 16, 23, 27, 36, 44, 45 and 48.

2.2. European Parliament amendments accepted by the Commission

The Commission incorporated 18 of Parliament's amendments in its amended proposal in full. The amendments concerned were 12, 13, 14, 18, 20, 22, 24, 26, 29, 31, 32, 34, 35, 38, 41, 47, 58 and 66.

Furthermore, the Commission accepted 20 amendments, either in part or in spirit. These amendments were: 2, 3, 5, 7, 8, 10, 11, 15, 17, 19, 30, 33, 37, 39, 40, 59, 65, 67, 68 and 70.

2.3. Amendments rejected by the Commission that the Council has incorporated in its Common Position

The Council accepted part of amendment 7, which refers to comparable situations, and amendment 45, which provides for the Directive to enter into force on a date later than that proposed by the Commission: 1 January 2002.

3. COUNCIL AMENDMENTS TO THE COMMISSION'S AMENDED PROPOSAL

(Unless otherwise stated, the numbering of recitals and paragraphs referred to is that used in the Common Position).

The Council adopted in full, in spirit if not verbatim, 18 of the 38 amendments wholly or partly incorporated by the Commission in its amended proposal. The amendments involved are 2, 3, 5, 8, 10, 11, 13, 15, 20, 29, 30, 37, 38, 40, 47, 59, 67 and 70.

However, the Council did not think it advisable to incorporate amendments 12, 14, 17, 18, 19, 22, 24, 26, 31, 33, 34, 35, 39, 58, 65, 66 and 68 (17 amendments), for the reasons given below.

3.1. Recital 9: judicial protection (amendment 12)

The Council kept the reference to Court of Justice case law and mentioned the judgment referred to in a footnote, but it did not think it advisable to retain the details of this judgment in the body of the recital. Furthermore, Article 7 already provided for people to be protected against reprisals (dismissal or other) on the part of the employer, as had been the case in Directives 2000/43/EC and 2000/78/EC).

3.2. Recital 11 (Commission numbering) and Article 8b: obligation on employers (amendments 14 and 66)

The Council preferred to focus on social dialogue and the autonomy of the two sides of industry and so did not wish to have employers bear the responsibility for promoting equality between men and women at the workplace, in particular by drawing up annual equality reports. In addition, such an obligation might prove extremely burdensome for small and medium-sized enterprises, which, moreover, would also render the measure less effective. As a related point, the Council would stress that its Common Position contains a provision on social dialogue as distinct from the dialogue with NGOs, contrary to the Commission which, in its amended proposal, seems to amalgamate the two kinds of dialogue.

3.3. Article 1: employment relationship (amendment 17)

The Council did not think it advisable to amend Article 1 of the existing Directive, in particular by adding a reference to the "legal nature of the relationship under which a person is employed or occupied," in the interests of parallelism with Directive 2000/78/EC.

3.4. Article 1(2): provisions on social security (amendment 18)

The Council did not wish to delete the reference to social security, either by deleting Article 1(2) of the existing Directive or by omitting the reference to Article 1(1).

3.5. Article 1(1a) (Commission numbering): mainstreaming (amendment 19)

The Council incorporated the obligation on Member States to apply the principle of mainstreaming when adopting and implementing legislative provisions, policies, etc. and to actively take into account the objective of equality between women and men, but with a wording slightly different to those proposed by Parliament and by the Commission.

3.6. Recital 4a and Article 1b: system of confidential counsellors (amendments 58 and 22) (Commission numbering)

The Council did not wish to incorporate a provision on setting up a system of confidential counsellors at the workplace, or other measures intended to prevent sexual harassment at the workplace, as it considered that this measure was far too detailed and was in fact addressed to employers rather than to the Member States or even the social partners. Furthermore, in this area as well, the Council was concerned to ensure parallelism with Directives 2000/43/EC and 2000/78/EC. As sexual harassment was a form of harassment, rather than a completely separate phenomenon, the Council did not think it appropriate to set up this kind of specific mechanism.

3.7. Article 2(4): exclusion of persons of one sex from certain professions (amendment 24)

The Council did not wish to incorporate that part of amendment 24 which provided that any exclusion of, or restriction on, one sex having access to any kind of professional activity constituted discrimination, as this section contradicted the remainder of the provision, which provided that certain characteristics related to sex may justify difference of treatment. Moreover, it should be borne in mind that this provision is identical to that in Directives 2000/43/EC and 2000/78/EC, and the Council is keen to adopt the same wording for identical provisions in all three texts, where possible.

3.8. Article 2(4): reference to the measures provided for in Article 141(4) of the Treaty (amendment 26)

The Council incorporated in the enacting terms a provision relating to the measures provided for in Article 141(4) of the Treaty. In addition, under Article 2, the Council provides for mandatory reporting every five years, as a requirement to report every two years, as provided for in the Commission's amended proposal, would cause logistical problems for a number of Member States.

3.9. Article 3(2): reference to the provisions of Article 141(4) of the Treaty (amendment 31)

The Council adopted only part of this amendment by Parliament, as incorporated in the Commission's amended proposal, as it did not consider it worthwhile to include the words "and without prejudice to the provisions of Article 141(4) of the Treaty"; Article 2(4) of the Council Common Position already refers to the option open to the Member States to adopt or maintain such measures.

3.10. Article 3(2): equal treatment between men and women (amendment 33)

Since the Directive as a whole concerns the implementation of equal treatment between men and women, the Council did not consider it useful to repeat that the principle of equal treatment in question was that of equal treatment between men and women. In the same way, Directives 2000/43/EC and 2000/78/EC referred to the principle of equal treatment without specifying the groups being compared.

3.11. Articles 4 and 5 of Directive 76/207/EC: ban on provisions contrary to equal treatment (amendments 34 and 35)

As the Council had merged Articles 3, 4 and 5 into one and deleted Articles 4 and 5 of the existing Directive, there was no further need to include amendments 34 and 35 in the Common Position.

3.12. Article 8a: functions of bodies for the promotion of equal treatment (amendments 39 and 68)

The Council considered that promotion of the principle of equal treatment regardless of sex, which should be the primary task of bodies charged with promoting equal treatment, was a more ambitious wording than that proposed by the Parliament and by the Commission, which both referred to implementation of the principle.

Moreover, the Council did not intend to limit the powers of these bodies to areas within the scope of this Directive and Directives 75/117/EEC, 79/7/EEC, 86/378/EEC, 92/85/EC, 96/34/EC and 97/80/EC, as it did not exclude the adoption of new legislative texts on the principle of equal treatment, in particular on the basis of Article 13 of the Treaty. The Council also wished to use the same wording as that adopted in Directive 2000/43/EC for the sake of consistency between these texts, as stated above. This concern for parallelism also underlines the proposed change to paragraph 2 of this Article, which provides that these bodies may receive complaints from groups of individuals and organisations and examine them, as neither in the case of Directive 2000/43/EC nor in the present case did the Council consider it desirable that these bodies be given a judicial or quasi-judicial role. However, these bodies could help victims of discrimination to institute proceedings for discrimination.

However, as the term "groups of individuals" has no legal status in most States it was discarded for purposes of this Directive, as it had been for Directives 2000/43/EC and 2000/78/EC.

3.13. Article 8c: penalties (amendment 65)

The Council considered it sufficient to provide that the Member States must "take all measures necessary to ensure that they are implemented", as it did not imagine that the Member States could take measures for an application of sanctions that was not effective.

4. CONCLUSIONS

The Council considers that the respective positions of the European Parliament and of the Council in fact differ only marginally, and it hopes that they will be able to fulfil the mandate given by the Stockholm European Council of 23 and 24 March 2001 to complete the updating of Directive 76/207/EEC by the end of 2001.