30.5.2006   

EN

Official Journal of the European Union

CE 126/1

(1)

Groundwater is a valuable natural resource which should be protected from chemical pollution. This is particularly important for groundwater-dependent ecosystems and for the use of groundwater in water supply for human consumption.

(2)

Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (4) includes the objective to achieve water quality levels that do not give rise to significant impacts on, and risks to, human health and the environment.

(3)

In order to protect the environment as a whole, and human health in particular, detrimental concentrations of harmful pollutants in groundwater should be avoided, prevented or reduced.

(4)

Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (5) sets out general provisions for the protection and conservation of groundwater. As provided for in Article 17 of that Directive, measures to prevent and control groundwater pollution should be adopted, including criteria for assessing good groundwater chemical status and criteria for the identification of significant and sustained upward trends and for the definition of starting points for trend reversals.

(5)

Having regard to the need to achieve consistent levels of protection for groundwater, quality standards and threshold values should be established, and methodologies based on a common approach should be developed, in order to provide criteria for the assessment of the chemical status of bodies of groundwater.

(6)

Quality standards for nitrates, plant protection products and biocides should be set as Community criteria for the assessment of the chemical status of bodies of groundwater, and consistency should be ensured with Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (6), Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (7), and Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (8) respectively.

(7)

Groundwater chemical status provisions do not apply to high naturally-occurring concentrations of substances or ions or their indicators, contained either in a body of groundwater or in associated bodies of surface water, due to specific hydro-geological conditions, which are not covered by the definition of pollution. Equally, they do not apply to temporary, spatially-limited changes in flow direction and chemical composition, which are not regarded as intrusions.

(8)

Criteria should be established for the identification of any significant and sustained upward trends in pollutant concentrations and for the definition of the starting point for trend reversal, taking into account the likelihood of adverse effects on associated aquatic ecosystems or dependent terrestrial ecosystems.

(9)

Member States should, where possible, use statistical procedures, provided they comply with international standards and contribute to the comparability of results of monitoring between Member States over long periods.

(10)

In accordance with the third indent of Article 22(2) of Directive 2000/60/EC, Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution by certain dangerous substances (9) is to be repealed with effect from 22 December 2013. It is necessary to ensure the continuity of the protection provided by Directive 80/68/EEC with regard to measures aimed at preventing or limiting both direct and indirect inputs of pollutants into groundwater.

(11)

It is necessary to distinguish between hazardous substances, inputs of which should be prevented, and other pollutants, inputs of which should be limited. Annex VIII to Directive 2000/60/EC, listing the main pollutants relevant for the water environment, should be used to identify hazardous and non-hazardous substances which present an existing or potential risk of pollution.

(12)

In order to ensure consistent protection of groundwater, Member States sharing bodies of groundwater should coordinate their activities in respect of monitoring, the setting of threshold values, and the identification of relevant hazardous substances.

(13)

In certain circumstances, Member States should be authorised to grant exemptions from measures to prevent or limit the input of pollutants into groundwater.

(14)

It is necessary to provide for transitional measures to apply during the period between the date of implementation of this Directive and the date from which Directive 80/68/EEC is repealed.

(15)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (10),

(a)

criteria for the assessment of good groundwater chemical status; and

(b)

criteria for the identification and reversal of significant and sustained upward trends and for the definition of starting points for trend reversals.

(1)

‘groundwater quality standard’ means an environmental quality standard expressed as the concentration of a particular pollutant, group of pollutants or indicator of pollution in groundwater, which should not be exceeded in order to protect human health and the environment;

(2)

‘threshold value’ means a groundwater quality standard set by Member States in accordance with Article 3;

(3)

‘significant and sustained upward trend’ means any statistically significant increase of concentration of a pollutant, group of pollutants, or indicator of pollution, which presents an environmental risk for which trend reversal is identified as being necessary in accordance with Article 5;

(4)

‘input of pollutants into groundwater’ means the direct or indirect introduction of pollutants into groundwater as a result of human activity.

(a)

groundwater quality standards as referred to in Annex I;

(b)

threshold values to be established by Member States in accordance with the procedure set out in Part A of Annex II for the pollutants, groups of pollutants and indicators of pollution which, within the territory of a Member State, have been identified as contributing to the characterisation of bodies or groups of bodies of groundwater as being at risk, taking into account at least the list contained in Part B of Annex II.

(a)

the values for the groundwater quality standards listed in Annex I and the relevant threshold values established in accordance with Article 3 and Annex II are not exceeded at any monitoring point in that body or group of bodies of groundwater; or

(b)

the value for a groundwater quality standard or threshold value is exceeded at one or more monitoring points but an appropriate investigation in accordance with Annex III confirms that:

(a)

the way in which the trend assessment from individual monitoring points within a body or a group of bodies of groundwater has contributed to identifying, in accordance with Section 2.5 of Annex V to that Directive, that those bodies are subject to a sustained and significant upward trend in concentration of any pollutant or a reversal of that trend; and

(b)

the reasons for the starting points defined pursuant to paragraph 3.

(a)

all measures necessary to aim to prevent inputs into groundwater of any hazardous substances. In identifying such substances, Member States shall in particular take account of hazardous substances belonging to the families or groups of pollutants referred to in points 1 to 6 of Annex VIII to Directive 2000/60/EC, as well as of substances belonging to the families or groups of pollutants referred to in points 7 to 9 of that Annex, where these are considered to be hazardous;

(b)

for pollutants listed in Annex VIII to Directive 2000/60/EC which are not considered hazardous, and any other non-hazardous pollutants not listed in that Annex considered by Member States to present an existing or potential risk of pollution, all measures necessary to limit inputs into groundwater so as to ensure that such inputs do not cause deterioration of good groundwater chemical status, do not cause any significant and sustained upward trends in the concentrations of pollutants in groundwater, and do not otherwise cause pollution of groundwater. Such measures shall take account of established best practice, including the Best Environmental Practice and Best Available Techniques specified in the relevant Community legislation.

(a)

the result of direct discharges authorised in accordance with Article 11(3)(j) of Directive 2000/60/EC;

(b)

considered by the competent authorities to be of a quantity and concentration so small as to obviate any present or future danger of deterioration in the quality of the receiving groundwater;

(c)

the consequences of accidents or exceptional circumstances of natural cause that could not reasonably have been foreseen, avoided or mitigated;

(d)

the result of artificial recharge or augmentation of bodies of groundwater authorised in accordance with Article 11(3)(f) of Directive 2000/60/EC;

(e)

considered by the competent authorities to be not technically feasible to prevent or limit without using:

(f)

the result of interventions in surface waters for the purposes, amongst others, of mitigating the effects of floods and droughts, and for the management of waters and waterways, including at international level. Such activities, including cutting, dredging, relocation and deposition of sediments in surface water, shall be conducted in accordance with general binding rules, and, where applicable, with permits and authorisations issued on the basis of such rules, developed by the Member States for that purpose, provided that such inputs do not compromise the achievement of the environmental objectives established for the water bodies concerned in accordance with Article 4(1)(b)(ii) of Directive 2000/60/EC.

30.5.2006   

EN

Official Journal of the European Union

CE 126/16

(1)

Community policy on the environment must aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. Moreover, information, including spatial information, is needed for the formulation and implementation of this policy and other Community policies, which must integrate environmental protection requirements in accordance with Article 6 of the Treaty. In order to bring about such integration, it is necessary to establish a measure of coordination between the users and providers of the information so that information and knowledge from different sectors can be combined.

(2)

The Sixth Environment Action Programme adopted by Decision No 1600/2002/EC of the European Parliament and of the Council (3) requires full consideration to be given to ensuring that the Community's environmental policy-making is undertaken in an integrated way, taking into account regional and local differences. A number of problems exist regarding the availability, quality, organisation, accessibility and sharing of spatial information needed in order to achieve the objectives set out in that programme.

(3)

The problems regarding the availability, quality, organisation, accessibility and sharing of spatial information are common to a large number of policy and information themes and are experienced across the various levels of public authority. Solving these problems requires measures that address exchange, sharing, access and use of interoperable spatial data and spatial data services across the various levels of public authority and across different sectors. An infrastructure for spatial information in the Community should therefore be established.

(4)

The Infrastructure for Spatial Information in the European Community (INSPIRE) should assist policy-making in relation to policies and activities that may have a direct or indirect impact on the environment.

(5)

INSPIRE should be based on the infrastructures for spatial information that are created by the Member States and that are made compatible with common implementing rules and are supplemented with measures at Community level. These measures should ensure that the infrastructures for spatial information created by the Member States are compatible and usable in a Community and transboundary context.

(6)

The infrastructures for spatial information in the Member States should be designed to ensure that spatial data are stored, made available and maintained at the most appropriate level; that it is possible to combine spatial data from different sources across the Community in a consistent way and share them between several users and applications; that it is possible for spatial data collected at one level of public authority to be shared between other public authorities to the extent that this Directive imposes on such public authorities a duty to share spatial data; that spatial data are made available under conditions which do not unduly restrict their extensive use; that it is easy to discover available spatial data, to evaluate their suitability for the purpose and to know the conditions applicable to their use.

(7)

There is a degree of overlap between the spatial information covered by this Directive and the information covered by Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (4). This Directive should be without prejudice to Directive 2003/4/EC.

(8)

This Directive should be without prejudice to Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (5), the objectives of which are complementary to those of this Directive.

(9)

The establishment of INSPIRE will represent significant added value for — and will also benefit from — other Community initiatives such as Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking (6) and the Communication from the Commission to the European Parliament and the Council ‘Global Monitoring for Environment and Security (GMES): Establishing a GMES capacity by 2008 — (Action Plan (2004 to 2008))’. Member States should consider using the data and services resulting from Galileo and GMES as they become available, in particular those related to the time and space references from Galileo.

(10)

Many initiatives are taken at national and Community level to collect, harmonise or organise the dissemination or use of spatial information. Such initiatives may be established by Community legislation, such as Commission Decision 2000/479/EC of 17 July 2000 on the implementation of a European pollutant emission register (EPER) according to Article 15 of Council Directive 96/61/EC concerning integrated pollution prevention and control (IPPC) (7) and Regulation (EC) No 2152/2003 of the European Parliament and of the Council of 17 November 2003 concerning monitoring of forests and environmental interactions in the Community (Forest Focus) (8), in the framework of Community funded programmes (for example CORINE land cover, European Transport Policy Information System) or may emanate from initiatives taken at national or regional level. This Directive will not only complement such initiatives by providing a framework that will enable them to become interoperable, but it will also build upon existing experience and initiatives rather than duplicate the work that has already been done.

(11)

This Directive should apply to spatial data held by or on behalf of public authorities and to the use of spatial data by public authorities in the performance of their public tasks. Subject to certain conditions, however, it should also apply to spatial data held by natural or legal persons other than public authorities, provided that those natural or legal persons request this.

(12)

This Directive should not set requirements for the collection of new data, or for reporting such information to the Commission, since those matters are regulated by other legislation related to the environment.

(13)

The implementation of the national infrastructures should be progressive and, accordingly, the spatial data themes covered by this Directive should be accorded different levels of priority. The implementation should take account of the extent to which spatial data are needed for a wide range of applications in various policy areas, of the priority of actions provided for under Community policies that need harmonised spatial data and of the progress already made by the harmonisation efforts undertaken in the Member States.

(14)

The loss of time and resources in searching for existing spatial data or establishing whether they may be used for a particular purpose is a key obstacle to the full exploitation of the data available. Member States should therefore provide descriptions of available spatial data sets and services in the form of metadata.

(15)

Since the wide diversity of formats and structures in which spatial data are organised and accessed in the Community hampers the efficient formulation, implementation, monitoring and evaluation of Community legislation that directly or indirectly affect the environment, implementing measures should be provided for in order to facilitate the use of spatial data from different sources across the Member States. Those measures should be designed to make the spatial data sets interoperable, and Member States should ensure that any data or information needed for the purposes of achieving interoperability are available on conditions that do not restrict their use for that purpose.

(16)

Network services are necessary for sharing spatial data between the various levels of public authority in the Community. Those network services should make it possible to discover, transform, view and download spatial data and to invoke spatial data and e-commerce services. The services of the network should work in accordance with commonly agreed specifications and minimum performance criteria in order to ensure the interoperability of the infrastructures established by the Member States. The network of services should also include the technical possibility to enable public authorities to make their spatial data sets and services available.

(17)

Certain spatial data sets and services relevant to Community policies that directly or indirectly affect the environment are held and operated by third parties. Member States should therefore offer third parties the possibility of contributing to the national infrastructures, provided that the cohesion and ease of use of the spatial data and spatial data services covered by those infrastructures is thereby not impaired.

(18)

Experience in the Member States has shown that it is important, for the successful implementation of an infrastructure for spatial information, that a minimum number of services be made available to the public free of charge. Member States should therefore make available, as a minimum and free of charge, the services for discovering spatial data sets.

(19)

In order to assist the integration of the national infrastructures into INSPIRE, Member States should provide access to their infrastructures through a Community geo-portal operated by the Commission, as well as through any access points they themselves decide to operate.

(20)

In order to make information from various levels of public authority available, Member States should remove the practical obstacles faced in that regard by public authorities at national, regional and local level when performing their public tasks that may have a direct or indirect impact on the environment. These practical obstacles should be removed at the point where the information is to be used for the public task.

(21)

Public authorities need to have smooth access to relevant spatial data sets and services during the execution of their public tasks. Such access can be hindered if it depends on individual ad hoc negotiations between public authorities every time access is required. Member States should take the necessary measures to prevent such practical obstacles to the sharing of data, using for example prior agreements between public authorities.

(22)

The mechanisms for sharing spatial data sets and services between government and other public administrations and natural or legal persons performing public administrative functions under national law may involve laws, regulations, licensing or financial arrangements or administrative procedures, for instance to protect the financial viability of those public authorities that have a duty placed on them to raise revenue, or for instance whose data are only partially subsidised by the Member State so that they have to recover the unsubsidised costs by charging the users, or for instance to guarantee the maintenance and update of those data.

(23)

The possibility for public authorities who supply spatial data sets and services to license these sets and services to, and require payment from, other public authorities who use these spatial data sets and services could be provided for in the measures adopted by Member States in their transposition legislation.

(24)

The provisions of point (f) of Article 13(1) and of Article 17(1) should be implemented and applied in full compliance with the principles relating to the protection of personal data in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (9).

(25)

Frameworks for the sharing of spatial data between public authorities upon whom the Directive imposes a duty to share should be neutral in respect of such public authorities within a Member State, but also in respect of such public authorities in other Member States and of the Community institutions. Since the Community institutions and bodies frequently need to integrate and assess spatial information from all the Member States, they should be able to gain access to and use spatial data and spatial data services in accordance with harmonised conditions.

(26)

With a view to stimulating the development of added-value services by third parties, for the benefit of both public authorities and the public, it is necessary to facilitate access to spatial data that extend over administrative or national borders.

(27)

The effective implementation of infrastructures for spatial information requires coordination by all those with an interest in the establishment of such infrastructures, whether as contributors or users. Appropriate coordination structures should therefore be established both in the Member States and at Community level.

(28)

In order to benefit from the state of the art and actual experience of information infrastructures, it is appropriate that the measures necessary for the implementation of this Directive should be supported by international standards and standards adopted by European standardisation bodies in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (10) and of rules on Information Society services.

(29)

Since the European Environment Agency set up by Council Regulation (EEC) No 1210/90 of 7 May 1990 on the establishment of the European Environment Agency and the European Environment Information and Observation Network (11) has the task of providing the Community with objective, reliable and comparable environmental information at Community level, and aims inter alia to improve the flow of policy-relevant environmental information between Member States and the Community institutions, it should contribute actively to the implementation of this Directive.

(30)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (12), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(31)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (13).

(32)

Preparatory work for decisions concerning the implementation of this Directive and for the future evolution of INSPIRE requires continuous monitoring of the implementation of the Directive and regular reporting.

(33)

Since the objective of this Directive, namely the establishment of INSPIRE, cannot be sufficiently achieved by the Member States because of the transnational aspects and the general need within the Community to coordinate the conditions of access to, exchange and sharing of spatial information, and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective,

(1)

‘infrastructure for spatial information’ means metadata, spatial data sets and spatial data services; network services and technologies; agreements on sharing, access and use; and coordination and monitoring mechanisms, processes and procedures, established, operated or made available in accordance with this Directive;

(2)

‘spatial data’ means any data with a direct or indirect reference to a specific location or geographical area;

(3)

‘spatial data set’ means an identifiable collection of spatial data;

(4)

‘spatial data services’ means the operations which may be performed, by invoking a computer application, on the spatial data contained in spatial data sets or on the related metadata;

(5)

‘spatial object’ means an abstract representation of a real-world phenomenon related to a specific location or geographical area;

(6)

‘metadata’ means information describing spatial data sets and spatial data services and making it possible to discover, inventory and use them;

(7)

‘interoperability’ means the possibility for spatial data sets to be combined, and for services to interact, without repetitive manual intervention, in such a way that the result is coherent and the added value of the data sets and services is enhanced;

(8)

‘INSPIRE geo-portal’ means an Internet site, or equivalent, providing access to the services referred to in Article 11(1);

(9)

‘public authority’ means:

Member States may provide that when bodies or institutions are acting in a judicial or legislative capacity, they are not to be regarded as a public authority for the purposes of this Directive;

10)

‘third party’ means any natural or legal person other than a public authority.

(a)

they relate to an area where a Member State has and/or exercises jurisdictional rights;

(b)

they are in electronic format;

(c)

they are held by or on behalf of any of the following:

(d)

they relate to one or more of the themes listed in Annex I, II or III.

(a)

the conformity of spatial data sets with the implementing rules provided for in Article 7(1);

(b)

conditions applying to access to, and use of, spatial data sets and services and, where applicable, corresponding fees;

(c)

the quality of spatial data, including whether they are validated;

(d)

the public authorities responsible for the establishment, management, maintenance and distribution of spatial data sets and services;

(e)

limitations on public access and the reasons for such limitations, in accordance with Article 13.

(a)

not later than two years after the date of adoption of implementing rules in accordance with Article 5(4) in the case of the spatial data sets corresponding to the themes listed in Annexes I and II;

(b)

not later than five years after the date of adoption of implementing rules in accordance with Article 5(4) in the case of the spatial data sets corresponding to the themes listed in Annex III.

(a)

solutions to ensure unambiguous identification of spatial objects, to which identifiers under existing national systems can be mapped in order to ensure interoperability between them;

(b)

the relationship between spatial objects;

(c)

the key attributes and the corresponding multilingual thesauri commonly required for policies which may have an impact on the environment;

(d)

information on the temporal dimension of the data;

(e)

updates of the data.

(a)

no later than … (15) in the case of the spatial data sets corresponding to the themes listed in Annex I;

(b)

no later than … (16) in the case of the spatial data sets corresponding to the themes listed in Annex II or III.

(a)

discovery services making it possible to search for spatial data sets and services on the basis of the content of the corresponding metadata and to display the content of the metadata;

(b)

view services making it possible, as a minimum, to display, navigate, zoom in/out, pan, or overlay viewable spatial data sets and to display legend information and any relevant content of metadata;

(c)

download services, enabling copies of spatial data sets, or parts of such sets, to be downloaded and, where practicable, accessed directly;

(d)

transformation services, enabling spatial data sets to be transformed with a view to achieving interoperability;

(e)

services allowing spatial data services to be invoked.

(a)

keywords;

(b)

classification of spatial data and services;

(c)

the quality of spatial data, including whether they are validated;

(d)

degree of conformity with the implementing rules provided for in Article 7(1);

(e)

geographical location;

(f)

conditions applying to the access to and use of spatial data sets and services;

(g)

the public authorities responsible for the establishment, management, maintenance and distribution of spatial data sets and services.

(a)

the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;

(b)

international relations, public security or national defence;

(c)

the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

(d)

the confidentiality of commercial or industrial information, where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;

(e)

intellectual property rights;

(f)

the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law;

(g)

the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;

(h)

the protection of the environment to which such information relates, such as the location of rare species.

(a)

the services referred to in point (a) of Article 11(1) are available to the public free of charge;

(b)

the services referred to in point (b) of Article 11(1) are, as a rule, available to the public free of charge. However, in cases where charges and/or licences are an essential precondition for maintaining the spatial data sets and services or for fulfilling the requirements of already existing international spatial data infrastructure in a sustainable way, Member States may apply charges and/or licences either to the person providing the service to the public, or, where the service provider chooses, to the public itself.

(a)

technical specifications for the services referred to in Articles 11 and 12 and minimum performance criteria for those services, taking account of existing reporting requirements and recommendations adopted within the framework of Community environmental legislation, existing e-commerce services and technological progress;

(b)

the obligations referred to in Article 12.

(a)

how public sector providers and users of spatial data sets and services and intermediary bodies are coordinated, and of the relationship with the third parties and of the organisation of quality assurance, as far as practicable;

(b)

the contribution made by public authorities or third parties to the functioning and coordination of the infrastructure for spatial information;

(c)

information on the use of the infrastructure for spatial information;

(d)

data-sharing agreements between public authorities;

(e)

the costs and benefits of implementing this Directive.

30.5.2006   

EN

Official Journal of the European Union

CE 126/33

(1)

Council Directive 76/207/EEC of 9 February 1976 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 (3) and Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (4) have been significantly amended (5). 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 (6) and Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (7) also contain provisions which have as their purpose the implementation of the principle of equal treatment between men and women. Now that new amendments are being made to the said Directives, it is desirable, for reasons of clarity that the provisions in question should be recast by bringing together in a single text the main provisions existing in this field as well as certain developments arising out of the case-law of the Court of Justice of the European Communities (hereinafter referred to as the Court of Justice).

(2)

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

(3)

The Court of Justice has held that the scope of the principle of equal treatment for men and women cannot be confined to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of its purpose and the nature of the rights which it seeks to safeguard it also applies to discrimination arising from the gender reassignment of a person.

(4)

Article 141(3) of the Treaty now provides a specific legal basis for the adoption of Community measures to ensure the application of the principle of equal opportunities and equal treatment in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

(5)

Articles 21 and 23 of the Charter of Fundamental Rights of the European Union also prohibit any discrimination on grounds of sex and enshrine the right to equal treatment between men and women in all areas, including employment, work and pay.

(6)

Harassment and sexual harassment are contrary to the principle of equal treatment between men and women and constitute discrimination on grounds of sex for the purposes of this Directive. These forms of discrimination occur not only in the workplace, but also in the context of access to employment, vocational training and promotion. They should therefore be prohibited and should be subject to effective, proportionate and dissuasive penalties.

(7)

In this context, employers and those responsible for vocational training should be encouraged to take measures to combat all forms of discrimination on grounds of sex and, in particular, to take preventive measures against harassment and sexual harassment in the workplace and in access to employment, vocational training and promotion, in accordance with national law and practice.

(8)

The principle of equal pay for equal work or work of equal value as laid down by Article 141 of the Treaty and consistently upheld in the case-law of the Court of Justice constitutes an important aspect of the principle of equal treatment between men and women and an essential and indispensable part of the acquis communautaire, including the case-law of the Court concerning sex discrimination. It is therefore appropriate to make further provision for its implementation.

(9)

In accordance with settled case-law of the Court of Justice, in order to assess whether workers are performing the same work or work of equal value, it should be determined whether, having regard to a range of factors including the nature of the work and training and working conditions, those workers may be considered to be in a comparable situation.

(10)

The Court of Justice has established that, in certain circumstances, the principle of equal pay is not limited to situations in which men and women work for the same employer.

(11)

The Member States, in collaboration with the social partners, should continue to address the problem of the continuing gender-based wage differentials and marked gender segregation on the labour market by means such as flexible working time arrangements which enable both men and women to combine family and work commitments more successfully. This could also include appropriate parental leave arrangements which could be taken up by either parent as well as the provision of accessible and affordable child-care facilities and care for dependent persons.

(12)

Specific measures should be adopted to ensure the implementation of the principle of equal treatment in occupational social security schemes and to define its scope more clearly.

(13)

In its judgment of 17 May 1990 in Case 262/88 (8), the Court of Justice determined that all forms of occupational pension constitute an element of pay within the meaning of Article 141 of the Treaty.

(14)

Although the concept of pay within the meaning of Article 141 of the Treaty does not encompass social security benefits, it is now clearly established that a pension scheme for public servants falls within the scope of the principle of equal pay if the benefits payable under the scheme are paid to the worker by reason of his/her employment relationship with the public employer, notwithstanding the fact that such scheme forms part of a general statutory scheme. According to the judgments of the Court of Justice in Cases C-7/93 (9) and C-351/00 (10), that condition will be satisfied if the pension scheme concerns a particular category of workers and its benefits are directly related to the period of service and calculated by reference to the public servant's final salary. For reasons of clarity, it is therefore appropriate to make specific provision to that effect.

(15)

The Court of Justice has confirmed that whilst the contributions of male and female workers to a defined-benefit pension scheme are covered by Article 141 of the Treaty, any inequality in employers' contributions paid under funded defined-benefit schemes which is due to the use of actuarial factors differing according to sex is not to be assessed in the light of that same provision.

(16)

By way of example, in the case of funded defined-benefit schemes, certain elements, such as conversion into a capital sum of part of a periodic pension, transfer of pension rights, a reversionary pension payable to a dependant in return for the surrender of part of a pension or a reduced pension where the worker opts to take earlier retirement, may be unequal where the inequality of the amounts results from the effects of the use of actuarial factors differing according to sex at the time when the scheme's funding is implemented.

(17)

It is well established that benefits payable under occupational social security schemes are not to be considered as remuneration insofar as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who initiated legal proceedings or brought an equivalent claim under the applicable national law before that date. It is therefore necessary to limit the implementation of the principle of equal treatment accordingly.

(18)

The Court of Justice has consistently held that the Barber Protocol (11) does not affect the right to join an occupational pension scheme and that the limitation of the effects in time of the judgment in Case 262/88 does not apply to the right to join an occupational pension scheme. The Court of Justice also ruled that the national rules relating to time limits for bringing actions under national law may be relied on against workers who assert their right to join an occupational pension scheme, provided that they are not less favourable for that type of action than for similar actions of a domestic nature and that they do not render the exercise of rights conferred by Community law impossible in practice. The Court of Justice has also pointed out that the fact that a worker can claim retroactively to join an occupational pension scheme does not allow the worker to avoid paying the contributions relating to the period of membership concerned.

(19)

Ensuring equal access to employment and the vocational training leading thereto is fundamental to the application of the principle of equal treatment of men and women in matters of employment and occupation. Any exception to this principle should therefore be limited to those occupational activities which necessitate the employment of a person of a particular sex by reason of their nature or the context in which they are carried out, provided that the objective sought is legitimate and complies with the principle of proportionality.

(20)

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 men and women.

(21)

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 men and women.

(22)

In accordance with Article 141(4) of the Treaty, with a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment does not prevent Member States from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. Given the current situation and bearing in mind Declaration No 28 to the Amsterdam Treaty, Member States should, in the first instance, aim at improving the situation of women in working life.

(23)

It is clear from the case-law of the Court of Justice that unfavourable treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of sex. Such treatment should therefore be expressly covered by this Directive.

(24)

The Court of Justice has consistently recognised the legitimacy, as regards the principle of equal treatment, of protecting a woman's biological condition during pregnancy and maternity and of introducing maternity protection measures as a means to achieve substantive equality. This Directive should therefore be 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 (12). This Directive should further be without prejudice to Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC (13).

(25)

For reasons of clarity, it is also appropriate to make express provision for the protection of the employment rights of women on maternity leave and in particular their right to return to the same or an equivalent post, to suffer no detriment in their terms and conditions as a result of taking such leave and to benefit from any improvement in working conditions to which they would have been entitled during their absence.

(26)

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 (14), Member States were encouraged to consider examining the scope for their respective legal systems to grant working men an individual and non-transferable right to paternity leave, while maintaining their rights relating to employment.

(27)

Similar considerations apply to the granting by Member States to men and women of an individual and non-transferable right to leave subsequent to the adoption of a child. It is for the Member States to determine whether or not to grant such a right to paternity and/or adoption leave and also to determine any conditions, other than dismissal and return to work, which are outside the scope of this Directive.

(28)

The effective implementation of the principle of equal treatment requires appropriate procedures to be put in place by the Member States.

(29)

The provision of adequate judicial or administrative procedures for the enforcement of the obligations imposed by this Directive is essential to the effective implementation of the principle of equal treatment.

(30)

The adoption of rules on the burden of proof plays a significant role in ensuring that the principle of equal treatment can be effectively enforced. As the Court of Justice has held, provision should therefore be made to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination, except in relation to proceedings in which it is for the court or other competent national body to investigate the facts. It is however necessary to clarify that the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination remains a matter for the relevant national body in accordance with national law or practice. Further, it is for the Member States to introduce, at any appropriate stage of the proceedings, rules of evidence which are more favourable to plaintiffs.

(31)

With a view to further improving the level of protection offered by this Directive, 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 a complainant, without prejudice to national rules of procedure concerning representation and defence.

(32)

Having regard to the fundamental nature of the right to effective legal protection, it is appropriate to ensure that workers continue to enjoy such protection even after the relationship giving rise to an alleged breach of the principle of equal treatment has ended. An employee defending or giving evidence on behalf of a person protected under this Directive should be entitled to the same protection.

(33)

It has been clearly established by the Court of Justice that in order to be effective, the principle of equal treatment implies that the compensation awarded for any breach must be adequate in relation to the damage sustained. It is therefore appropriate to exclude the fixing of any prior upper limit for such compensation, except where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive was the refusal to take his/her job application into consideration.

(34)

In order to enhance the effective implementation of the principle of equal treatment, Member States should promote dialogue between the social partners and, within the framework of national practice, with non-governmental organisations.

(35)

Member States should provide for effective, proportionate and dissuasive penalties in case of breaches of the obligations under this Directive.

(36)

Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(37)

For the sake of a better understanding of the different treatment of men and women in matters of employment and occupation, comparable statistics disaggregated by sex should continue to be developed, analysed and made available at the appropriate levels.

(38)

Equal treatment of men and women in matters of employment and occupation cannot be restricted to legislative measures. Instead, the European Union and the Member States should continue to promote the raising of public awareness of wage discrimination and the changing of public attitudes, involving all parties concerned at public and private level to the greatest possible extent. The dialogue between the social partners could play an important role in this process.

(39)

The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are substantially unchanged arises under the earlier Directives.

(40)

This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex I, Part B.

(41)

In accordance with paragraph 34 of the Interinstitutional agreement on better law-making (15), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between this Directive and the transposition measures and to make them public,

(a)

access to employment, including promotion, and to vocational training;

(b)

working conditions, including pay;

(c)

occupational social security schemes.

(a)

‘direct discrimination’: 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’: 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;

(c)

‘harassment’: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment;

(d)

‘sexual harassment’: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment;

(e)

‘pay’: the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his/her employment from his/her employer;

(f)

‘occupational social security schemes’: schemes not governed by Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (16) whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.

(a)

harassment and sexual harassment, as well as any less favourable treatment based on a person's rejection of or submission to such conduct;

(b)

instruction to discriminate against persons on grounds of sex;

(c)

any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.

(a)

the scope of such schemes and the conditions of access to them;

(b)

the obligation to contribute and the calculation of contributions;

(c)

the calculation of benefits, including supplementary benefits due in respect of a spouse or dependants, and the conditions governing the duration and retention of entitlement to benefits.

(a)

occupational social security schemes which provide protection against the following risks:

(b)

occupational social security schemes which provide for other social benefits, in cash or in kind, and in particular survivors' benefits and family allowances, if such benefits constitute a consideration paid by the employer to the worker by reason of the latter's employment.

(a)

individual contracts for self-employed persons;

(b)

single-member schemes for self-employed persons;

(c)

insurance contracts to which the employer is not a party, in the case of workers;

(d)

optional provisions of occupational social security schemes offered to participants individually to guarantee them:

(e)

occupational social security schemes in so far as benefits are financed by contributions paid by workers on a voluntary basis.

(a)

determining the persons who may participate in an occupational social security scheme;

(b)

fixing the compulsory or optional nature of participation in an occupational social security scheme;

(c)

laying down different rules as regards the age of entry into the scheme or the minimum period of employment or membership of the scheme required to obtain the benefits thereof;

(d)

laying down different rules, except as provided for in points (h) and (j), for the reimbursement of contributions when a worker leaves a scheme without having fulfilled the conditions guaranteeing a deferred right to long-term benefits;

(e)

setting different conditions for the granting of benefits or restricting such benefits to workers of one or other of the sexes;

(f)

fixing different retirement ages;

(g)

suspending the retention or acquisition of rights during periods of maternity leave or leave for family reasons which are granted by law or agreement and are paid by the employer;

(h)

setting different levels of benefit, except in so far as may be necessary to take account of actuarial calculation factors which differ according to sex in the case of defined-contribution schemes; in the case of funded defined-benefit schemes, certain elements may be unequal where the inequality of the amounts results from the effects of the use of actuarial factors differing according to sex at the time when the scheme's funding is implemented;

(i)

setting different levels for workers' contributions;

(j)

setting different levels for employers' contributions, except:

(k)

laying down different standards or standards applicable only to workers of a specified sex, except as provided for in points (h) and (j), as regards the guarantee or retention of entitlement to deferred benefits when a worker leaves a scheme.

(a)

determination of pensionable age for the granting of old-age or retirement pensions, and the possible implications for other benefits:

(b)

survivors' pensions until Community law establishes the principle of equal treatment in statutory social security schemes in that regard;

(c)

the application of Article 9(1)(i) in relation to the use of actuarial calculation factors, until 1 January 1999 or for Member States whose accession took place after that date until the date that Directive 86/378/EEC became applicable in their territory.

(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 Article 141 of the Treaty;

(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.

(a)

the situations covered by Article 141 of the Treaty and, insofar as discrimination based on sex is concerned, by Directives 92/85/EEC and 96/34/EC;

(b)

any civil or administrative procedure concerning the public or private sector which provides for means of redress under national law pursuant to the measures referred to in (a) with the exception of out-of-court procedures of a voluntary nature or provided for in national law.

(a)

without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 17(2), 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;

(d)

at the appropriate level exchanging available information with corresponding European bodies such as any future European Institute for Gender Equality.

(a)

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

(b)

provisions contrary to the principle of equal treatment in individual or collective contracts or agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers' and employers' organisations or any other arrangements shall be, or may be, declared null and void or are amended;

(c)

occupational social security schemes containing such provisions may not be approved or extended by administrative measures.