The General Assembly of the European Women Lawyers Association, held from 1 - 3 June 2001 in Sevilla, Spain, has unanimously adopted the following Resolution
Resolution on the Directive of the European Parliament and of the Council amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions
The EWLA welcomes the European Commission’s proposal of 7 June 2000 for a change of Directive 76/207/EEC, and the legislative proposal of the European Parliament adopted on 31 May 2001. EWLA has also carefully noted the reaction of the Commission’s representative to Parliament´s proposal.
EWLA takes note of the fact that the final response of the Commission to the proposals is not yet known. EWLA will therefore respond to the discussions in Parliament in general.
EWLA regards it as essential to include in the text of the revised directive 76/207, and requests that the following points should be taken into account: 1. Discrimination
EWLA underlines that a definition of direct discrimination should be introduced according to the one included in directive 00/43/EC. The definition of indirect discrimination also, should be adapted to the one included in directive 00/43/EC.
The currently accepted EP-proposal for the text of art. 2 (2) of Directive 76/207/EEC which deals with genuine and determining occupational requirements is inconsistent and does not clarify the point properly.
The EWLA proposes that the text of art. 4 of Directive 00/43/EC be used, where appropriate, with the following important clarification. The words “in individual cases” should be added in order to make it clear that general exclusions of people of one sex from specific occupations should never be allowed. The text of art. 2(2) should read:
“Notwithstanding Article 2 paragraph 1, Member States may provide that in individual cases a difference of treatment which is based on a characteristic related to sex shall not constitute discrimination where, by reason of the nature of the particular occupational activity concerned, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.” 2. Positive action
Art. 141 (4) EC-Treaty which deals with positive measures in order to ensure full equality in practice between women and men is of great value. However, in order to achieve substantive gender equality, positive action is necessary in all aspects covered by the directive, including access to employment, vocational training and promotion, and working conditions. It is therefore necessary to include a specific provision in the text of the revised directive and in the preamble confirming and clarifying the scope of positive action. 3. Burden of proof
EWLA regrets that the European Commission has not adopted clear rules for the burden of proof into the amendment to directive 76/207. The burden of proof plays a central role in discrimination cases. Therefore, the same principles as expressed in Art. 8 of Council Directive 00/43/EC should be included in the amended Directive 76/207 also. 4. Maternity protection and parental leave
EWLA notes that the right of women to return to the workplace after giving birth is an essential part of Community Law on the protection of women during pregnancy and maternity. EWLA welcomes the provision proposed by the European Parliament that this should mean a right to return to the same job, with the same working conditions, as well as to benefit from any improvement in working conditions to which they would have been entitled during their absence. Only when inevitable, in cases such as restructuring, an equivalent job is acceptable.
The protection of parents during parental leave needs to be included into Art. 2 (2) of Directive 76/207/EC. However, the protection of women during pregnancy and motherhood as well as parental leave should not as a rule be dealt with as an exception to the principle of equality of treatment between women and men. These provisions are a prerequisite for the equality of treatment between women and men.
The effective implementation of maternity and paternity rights, as well as the right of women and men to reconcile family and working life is a conditio sine qua non for gender equality, as well as for the achievement of the strategic social and economic goals of the Union. 5. Women´s organisations for achieving gender equality
Women’s trade unions or organisations which strive for gender equality and women’s rights should be allowed and acknowledged as a form of positive action. Positive measures within the meaning of Article 141 (4) of the EC-treaty, may include continuing the activity of, or creating organisations or sections of organisations whose main objective is the promotion of gender equality and women’s rights and/or interests and which seek the membership of women only.
Such organisations have a pivotal role in achieving equality in practice for women and men and it would be a most serious step backward to make them illegal or to obstruct their work. Therefore, EWLA asks for one sex organisations to be allowed by way of positive action. An addition to article 3 (1) d should be made to this effect. 6. Social and civil dialogue
Like the Commission, EWLA is of the opinion that the social partners play an essential role in the realisation of equal treatment for women and men. Yet, it furthermore demands that a rule promoting the dialogue with non-governmental organisations should be included into the directive as well, following the wording of Article 12 of directive 00/43/EC. 7. Legal action of associations
According to EWLA, the proposed right of associations to sue in their own name for the benefit of a third party will further advance the principle of equal treatment for women and men. However, EWLA fears that in the process of implementing this rule into national law the rule will be reduced to a mere possibility of associations to act in support of the complainant, not to sue in their own name in cases of discrimination of a more general character. Therefore, EWLA supports that the right of associations to bring actions in their own name should also be included. In individual cases, it is of course indispensable to have the consent of the individual(s) concerned. 8. Independent bodies
EWLA explicitly welcomes the regulation concerning the set-up of independent bodies. It is of the opinion that these bodies can in general help to monitor and support - beyond the acting of the state - the enforcement and promotion of equal treatment for women and men. It is of course of crucial importance that these bodies are financed and staffed sufficiently. 9. Contract compliance
EWLA welcomes the provision in the text of the European Parliament, stating that in public procurement tenders, authorities may include demands that provide for positive action measures with a view to ensuring full equality in practice for women and men. 10. Linguistic style / wording
Finally EWLA would like to point out that it is necessary to revise the Directive concerning the wording in some language versions. Wherever in a language nouns are used that are not gender-neutral, both the male and the female version of the nouns should be used.