26.7.2006   

EN

Official Journal of the European Union

L 204/1

(1)

The single market for air services should benefit citizens in general. Consequently, disabled persons and persons with reduced mobility, whether caused by disability, age or any other factor, should have opportunities for air travel comparable to those of other citizens. Disabled persons and persons with reduced mobility have the same right as all other citizens to free movement, freedom of choice and non-discrimination. This applies to air travel as to other areas of life.

(2)

Disabled persons and persons with reduced mobility should therefore be accepted for carriage and not refused transport on the grounds of their disability or lack of mobility, except for reasons which are justified on the grounds of safety and prescribed by law. Before accepting reservations from disabled persons or persons with reduced mobility, air carriers, their agents and tour operators should make all reasonable efforts to verify whether there is a reason which is justified on the grounds of safety and which would prevent such persons being accommodated on the flights concerned.

(3)

This Regulation should not affect other rights of passengers established by Community legislation and notably Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (3) and Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights (4) . Where the same event would give rise to the same right of reimbursement or rebooking under either of those legislative acts as well as under this Regulation, the person so entitled should be allowed to exercise that right once only, at his or her discretion.

(4)

In order to give disabled persons and persons with reduced mobility opportunities for air travel comparable to those of other citizens, assistance to meet their particular needs should be provided at the airport as well as on board aircraft, by employing the necessary staff and equipment. In the interests of social inclusion, the persons concerned should receive this assistance without additional charge.

(5)

Assistance given at airports situated in the territory of a Member State to which the Treaty applies should, among other things, enable disabled persons and persons with reduced mobility to proceed from a designated point of arrival at an airport to an aircraft and from the aircraft to a designated point of departure from the airport, including embarking and disembarking. These points should be designated at least at the main entrances to terminal buildings, in areas with check-in counters, in train, light rail, metro and bus stations, at taxi ranks and other drop-off points, and in airport car parks. The assistance should be organised so as to avoid interruption and delay, while ensuring high and equivalent standards throughout the Community and making best use of resources, whatever airport or air carrier is involved.

(6)

To achieve these aims, ensuring high quality assistance at airports should be the responsibility of a central body. As managing bodies of airports play a central role in providing services throughout their airports, they should be given this overall responsibility.

(7)

Managing bodies of airports may provide the assistance to disabled persons and persons with reduced mobility themselves. Alternatively, in view of the positive role played in the past by certain operators and air carriers, managing bodies may contract with third parties for the supply of this assistance, without prejudice to the application of relevant rules of Community law, including those on public procurement.

(8)

Assistance should be financed in such a way as to spread the burden equitably among all passengers using an airport and to avoid disincentives to the carriage of disabled persons and persons with reduced mobility. A charge levied on each air carrier using an airport, proportionate to the number of passengers it carries to or from the airport, appears to be the most effective way of funding.

(9)

With a view to ensuring, in particular, that the charges levied on an air carrier are commensurate with the assistance provided to disabled persons and persons with reduced mobility, and that these charges do not serve to finance activities of the managing body other than those relating to the provision of such assistance, the charges should be adopted and applied in full transparency. Council Directive 96/67/EC of 15 October 1996 on access to the groundhandling market at Community airports (5) and in particular the provisions on separation of accounts, should therefore apply where this does not conflict with this Regulation.

(10)

In organising the provision of assistance to disabled persons and persons with reduced mobility, and the training of their personnel, airports and air carriers should have regard to document 30 of the European Civil Aviation Conference (ECAC), Part I, Section 5 and its associated annexes, in particular the Code of Good Conduct in Ground Handling for Persons with Reduced Mobility as set out in Annex J thereto at the time of adoption of this Regulation.

(11)

In deciding on the design of new airports and terminals, and as part of major refurbishments, managing bodies of airports should, where possible, take into account the needs of disabled persons and persons with reduced mobility. Similarly, air carriers should, where possible, take such needs into account when deciding on the design of new and newly refurbished aircraft.

(12)

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 (6) should be strictly enforced in order to guarantee respect for the privacy of disabled persons and persons with reduced mobility, and ensure that the information requested serves merely to fulfil the assistance obligations laid down in this Regulation and is not used against passengers seeking the service in question.

(13)

All essential information provided to air passengers should be provided in alternative formats accessible to disabled persons and persons with reduced mobility, and should be in at least the same languages as the information made available to other passengers.

(14)

Where wheelchairs or other mobility equipment or assistive devices are lost or damaged during handling at the airport or during transport on board aircraft, the passenger to whom the equipment belongs should be compensated, in accordance with rules of international, Community and national law.

(15)

Member States should supervise and ensure compliance with this Regulation and designate an appropriate body to carry out enforcement tasks. This supervision does not affect the rights of disabled persons and persons with reduced mobility to seek legal redress from courts under national law.

(16)

It is important that a disabled person or person with reduced mobility who considers that this Regulation has been infringed be able to bring the matter to the attention of the managing body of the airport or to the attention of the air carrier concerned, as the case may be. If the disabled person or person with reduced mobility cannot obtain satisfaction in such way, he or she should be free to make a complaint to the body or bodies designated to that end by the relevant Member State.

(17)

Complaints concerning assistance given at an airport should be addressed to the body or bodies designated for the enforcement of this Regulation by the Member State where the airport is situated. Complaints concerning assistance given by an air carrier should be addressed to the body or bodies designated for the enforcement of this Regulation by the Member State which has issued the operating licence to the air carrier.

(18)

Member States should lay down penalties applicable to infringements of this Regulation and ensure that those penalties are applied. The penalties, which could include ordering the payment of compensation to the person concerned, should be effective, proportionate and dissuasive.

(19)

Since the objectives of this Regulation, namely to ensure high and equivalent levels of protection and assistance throughout the Member States and to ensure that economic agents operate under harmonised conditions in a single market, cannot sufficiently be achieved by the Member States and can therefore, by reason of the scale or effects of the action, 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 Regulation does not go beyond what is necessary in order to achieve those objectives.

(20)

This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(21)

Arrangements for greater cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland in a joint declaration by the Ministers of Foreign Affairs of the two countries. Such arrangements have yet to enter into operation,

(a)

‘disabled person’ or ‘person with reduced mobility’ means any person whose mobility when using transport is reduced due to any physical disability (sensory or locomotor, permanent or temporary), intellectual disability or impairment, or any other cause of disability, or age, and whose situation needs appropriate attention and the adaptation to his or her particular needs of the service made available to all passengers;

(b)

‘air carrier’ means an air transport undertaking with a valid operating licence;

(c)

‘operating air carrier’ means an air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger;

(d)

‘Community air carrier’ means an air carrier with a valid operating licence granted by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (7);

(e)

‘tour operator’ means, with the exception of an air carrier, an organiser or retailer within the meaning of Article 2(2) and (3) of Directive 90/314/EEC;

(f)

‘managing body of the airport’ or ‘managing body’ means a body which notably has as its objective under national legislation the administration and management of airport infrastructures, and the coordination and control of the activities of the various operators present in an airport or airport system;

(g)

‘airport user’ means any natural or legal person responsible for the carriage of passengers by air from or to the airport in question;

(h)

‘Airport Users Committee’ means a committee of representatives of airport users or organisations representing them;

(i)

‘reservation’ means the fact that the passenger has a ticket, or other proof, which indicates that the reservation has been accepted and registered by the air carrier or tour operator;

(j)

‘airport’ means any area of land specially adapted for the landing, taking-off and manoeuvres of aircraft, including ancillary installations which these operations may involve for the requirements of aircraft traffic and services including installations needed to assist commercial air services;

(k)

‘airport car park’ means a car park, within the airport boundaries or under the direct control of the managing body of an airport, which directly serves the passengers using that airport;

(l)

‘commercial passenger air service’ means a passenger air transport service operated by an air carrier through a scheduled or non‐scheduled flight offered to the general public for valuable consideration, whether on its own or as part of a package.

(a)

to accept a reservation for a flight departing from or arriving at an airport to which this Regulation applies;

(b)

to embark a disabled person or a person with reduced mobility at such an airport, provided that the person concerned has a valid ticket and reservation.

(a)

in order to meet applicable safety requirements established by international, Community or national law or in order to meet safety requirements established by the authority that issued the air operator's certificate to the air carrier concerned;

(b)

if the size of the aircraft or its doors makes the embarkation or carriage of that disabled person or person with reduced mobility physically impossible.

(a)

to the managing bodies of the airports of departure, arrival and transit, and

(b)

to the operating air carrier, if a reservation was not made with that carrier, unless the identity of the operating air carrier is not known at the time of notification, in which case the information shall be transmitted as soon as practicable.

(a)

the person presents himself or herself for check-in:

(b)

the person arrives at a point within the airport boundary designated in accordance with Article 5:

(a)

ensure that all their personnel, including those employed by any sub-contractor, providing direct assistance to disabled persons and persons with reduced mobility have knowledge of how to meet the needs of persons having various disabilities or mobility impairments;

(b)

provide disability-equality and disability-awareness training to all their personnel working at the airport who deal directly with the travelling public;

(c)

ensure that, upon recruitment, all new employees attend disability‐related training and that personnel receive refresher training courses when appropriate.

26.7.2006   

EN

Official Journal of the European Union

L 204/10

(1)

Food additives may be approved for use in foodstuffs only if they comply with Annex II to Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorized for use in foodstuffs intended for human consumption (3).

(2)

Directive 95/2/EC (4) lays down a list of food additives that may be used in the Community and the conditions for their use.

(3)

Directive 94/35/EC (5) lays down a list of sweeteners that may be used in the Community and the conditions for their use.

(4)

There have been technical developments in the field of food additives since the adoption of Directives 95/2/EC and 94/35/EC. These Directives should be adapted to take account of those developments.

(5)

On the basis of an opinion of the European Food Safety Authority (EFSA), expressed on 26 November 2003, changes are made to current authorisations in order to keep the level of nitrosamines as low as possible by bringing down the levels of nitrites and nitrates added to food whilst maintaining the microbiological safety of food products. EFSA recommends that the levels of nitrite and nitrate are set in the legislation as ‘added amount’. EFSA is of the opinion that the added amount of nitrite rather than the residual amount contributes to the inhibitory activity against C. botulinum. The current provisions should be amended in such a way that the maximum levels permitted, as mentioned by EFSA, in non-heat-treated or heat‐treated meat products, in cheese and in fish are expressed as added amounts. Exceptionally, however, for certain traditionally manufactured meat products maximum residual levels should be set, on the condition that the products are adequately specified and identified. The levels set should ensure that the acceptable daily intake (ADI) established by the Scientific Committee on Food in 1990 is not exceeded. Products which are not specifically named in this Directive, but which are traditionally produced in a similar manner (i.e. similar products) can if necessary be categorised in accordance with Articles 5 and 6 of Directive 95/2/EC. For cheese, the level should be expressed as the amount added to the cheese milk. If a process is used where addition of nitrate follows removal of whey and addition of water, this should lead to levels identical to those which would have been obtained had the nitrate been added directly to the cheese milk.

(6)

Directive 2003/114/EC amending Directive 95/2/EC required the Commission and EFSA to review the conditions for the use of E 214 to E 219 p-hydroxybenzoates and their sodium salts before 1 July 2004. EFSA assessed the information on the safety of p‐hydroxybenzoates and expressed its opinion on 13 July 2004. EFSA established a full‐group ADI of 0 to 10 mg/kg body weight for the sum of methyl and ethyl p‐hydroxybenzoic acid esters and their sodium salts. EFSA considered that propyl paraben should not be included in this group ADI because propyl paraben, contrary to methyl and ethyl paraben, had effects on sex hormones and the male reproductive organs in juvenile rats. Therefore, EFSA was unable to recommend an ADI for propyl paraben because of the lack of a clear no-observed-adverse-effect-level (NOAEL). It is necessary to withdraw E 216 propyl p‐hydroxybenzoate and E 217 sodium propyl p-hydroxybenzoate from Directive 95/2/EC. In addition, it is necessary to withdraw the use of p-hydroxybenzoates in liquid dietary food supplements.

(7)

Commission Decision 2004/374/EC (6) suspended the placing on the market and import of jelly mini-cups containing gel-forming food additives derived from seaweed and certain gums due to the risk of choking on these products. Following a review of that Decision it is necessary to exclude the use of certain gel-forming food additives in jelly mini-cups.

(8)

The Scientific Committee on Food assessed the information on the safety of erythritol and expressed its opinion on 5 March 2003. The Committee concluded that the use of erythritol as a food additive is acceptable. The Committee also notes that erythritol has a laxative effect, but at a higher dose than other polyols. Erythritol has many technological non‐sweetening properties that are important in a wide range of foods, from confectionery to dairy products. These include functions such as flavour enhancer, carrier, humectant, stabiliser, thickener, bulking agent and sequestrant. It is necessary to permit the use of erythritol in the same food applications as the other currently permitted polyols. In addition, it is necessary to amend Directive 94/35/EC, as erythritol can also be used for sweetening purposes like the other currently permitted polyols.

(9)

The Scientific Committee on Food assessed the information on the safety of soybean hemicellulose and expressed its opinion on 4 April 2003. The Committee concluded that the use of soybean hemicellulose is acceptable in certain foods in respect of which the request was made and at certain inclusion levels. It is therefore appropriate to permit such use for certain purposes. In order to facilitate matters for allergy sufferers, however, such use should not be permitted for unprocessed foods in which soybean is not expected to be found. At all events, consumers should be informed when products contain hemicellulose derived from soybean in accordance with the provisions of Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (7) .

(10)

EFSA assessed the information on the safety of ethyl cellulose and expressed its opinion on 17 February 2004. EFSA decided to include ethyl cellulose in the group ADI ‘not specified’ for modified celluloses established by the Scientific Committee on Food. The main application of ethyl cellulose is in food supplements and encapsulated flavourings. The use of ethyl cellulose should therefore be permitted in a way similar to that for other celluloses.

(11)

EFSA assessed the information on the safety of pullulan and expressed its opinion on 13 July 2004. EFSA found the use of pullulan acceptable in the coating of food supplements that are in the form of capsules and tablets as well as in breath fresheners in the form of films. It is therefore appropriate to permit these uses.

(12)

EFSA assessed the information on the safety of tertiary butyl hydroquinone (TBHQ) and expressed its opinion on 12 July 2004. EFSA established an ADI of 0 to 0,7 mg/kg body weight for this antioxidant and found that its use would be acceptable in certain foodstuffs at certain inclusion levels. It is therefore appropriate to permit this additive.

(13)

The Scientific Committee on Food assessed the information on the safety of starch aluminium octenyl succinate and expressed its opinion on 21 March 1997. The Committee found that the use of this additive as a component of micro encapsulated vitamins and carotenoids may be regarded as acceptable. It is therefore appropriate to permit this use.

(14)

During the manufacture of sour milk cheese, E 500ii sodium hydrogen carbonate is added to the pasteurised milk in order to buffer the acidity caused by the lactic acid to an appropriate pH value, thereby creating the necessary growth conditions for the ripening cultures. It is, therefore, appropriate to permit the use of sodium hydrogen carbonate in sour milk cheese.

(15)

Currently, the use of a mixture of sorbates (E 200, E 202 and E 203) and benzoates (E 210 to E 213) is authorised in cooked shrimps for preservation. It is appropriate to extend that authorisation to its use in all cooked crustaceans and molluscs.

(16)

E 551 silicon dioxide is permitted as a carrier for food colours at the maximum level of 5 %. The use of silicon dioxide as a carrier for food colours E 171 titanium dioxide and E 172 iron oxides and hydroxides should also be permitted at the level of maximum 90 % relative to the pigment.

(17)

Directive 95/2/EC limits the use of additives listed in Annex I to that Directive in traditional French bread ‘Pain courant français’. The same limitation should apply to similar traditional Hungarian bread. It is also appropriate to authorise use of ascorbic acid (E 300), sodium ascorbate (E 301) and calcium disodium EDTA (E 385) in Hungarian liver patés.

(18)

It is necessary to update the current provisions regarding the use of sulphites (E 220 to E 228) in cooked crustaceans, table grapes and lychees.

(19)

In accordance with a request from a Member State and the opinion of the Scientific Committee on Food of 5 March 2003, 4-hexylresorcinol, which was authorised at national level under Directive 89/107/EEC, should be authorised at Community level.

(20)

The terminology used in Directive 95/2/EC should be adapted to take into account Council Directive 89/398/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses (8), Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (9) and Commission Directive 1999/21/EC of 25 March 1999 on dietary foods for special medical purposes (10) .

(21)

Directives 95/2/EC and 94/35/EC should, therefore, be amended accordingly,

1.

Article 1(3)(c) shall be replaced by the following:

2.

in Article 3(2) ‘weaning foods’ shall be replaced by ‘processed cereal-based foods and baby foods’;

3.

the Annexes shall be amended in accordance with Annex I to this Directive.

(a)

permit trade in and the use of products complying with this Directive by 15 February 2008;

(b)

prohibit trade in and use of products which do not comply with this Directive by 15 August 2008.

26.7.2006   

EN

Official Journal of the European Union

L 204/23

(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 C-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 C-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 for 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.