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Burden of proof in cases of discrimination based on sex

This summary has been archived and will not be updated, because the summarised document is no longer in force or does not reflect the current situation.

Burden of proof in cases of discrimination based on sex

The European Community guarantees that the measures taken by Member States to enable 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.


Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex [See amending acts].


The principle of equal treatment means the absence of any discrimination based on sex, either directly or indirectly.

Indirect discrimination exists where an apparently neutral provision, criterion or practice disproportionately disadvantages the members of one sex, unless the aim pursued by the application of this provision, criterion or practice is objectively justified and the means of achieving it are appropriate and necessary.

The Directive applies to:

  • the situations covered by Article 141 (ex-Article 119) of the EC Treaty and by Directives 75/117/EEC (principle of equal pay), 76/207/EEC (access to employment, vocational training and promotion) and, insofar as discrimination based on sex is concerned, 92/85/EEC (protection of pregnant workers and those who have recently given birth or are breastfeeding) and 96/34/EC (parental leave);
  • any civil or administrative procedure concerning the public or private sector, with the exception of out-of-court procedures.

The Directive does not apply to criminal procedures, unless otherwise provided for by the Member States.

Member States shall take such measures as are necessary in accordance with their national judicial systems to ensure that, where the plaintiff establishes, before a court or other competent authority, facts from which discrimination may be presumed to exist, it is for the defendant to prove that there has been no contravention of the principle of equality.

Member States are not prevented from introducing evidential rules which are more favourable to the plaintiff.

Measures taken by the Member States pursuant to the Directive, together with the provisions already in force, must be brought to the attention of all persons concerned.

Implementation of the provisions of the Directive does not in any circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the area to which it applies.

Council Directive 98/52/EC extends the scope of Directive 97/80/EC of the United Kingdom.



Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 97/80/EC



JO L 14 of 20.01.1998

Amending act(s)

Entry into force

Deadline for transposition in the Member States

Official Journal

Directive 98/52/EC



JO L 205 of 22.07.1998


Proposal for a Council Directive implementing the principle of equal treatment between women and men in the access to and supply of goods and services [COM(2003) 657 final - Not published in the Official Journal].

Procedure CNS/2003/265

Last updated: 25.03.2004