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GENDER EQUALITY CONCERNING EPSO COMPETITION NOTICES
EPSO/AD/17/05, EPSO/AD/18/05, EPSO/AD/19/05
Background
Three notices of general competition by the European Personnel Selection Office (EPSO), published in the Official Journal C 140 A, on 9 June 2005.
EPSO/AD/17/05 - Administrators (A*9) Finnish language calls for at least 12 years’ full time professional experience, EPSO/AD/18/05 - Administrators (A*12) Finnish language calls for at least 15 years’ full time professional experience and EPSO/AD/19/05 - Administrators (A*9) Swedish language calls for least 12 years’ full time professional experience. The notices in question are in the annex of this opinion.
This legal opinion concentrates on the issue whether the requirement of full time professional experience constitutes indirect discrimination.
Preliminary remarks
I. Gender equality as a principle which is binding on Members States and EU institutions and organs
EPSO is evidently bound by its staff regulations. However, it is also bound, like any other EC/EU institution and organ, by the gender equality general principle/fundamental right, as proclaimed in the EC Treaty and extensive ECJ case-law and implemented in a number of fields, including employment, by the EC Treaty itself (Article 141, ex 119) and EC/EU secondary legislation. This principle excludes any direct or indirect discrimination on grounds of sex and, like any other general principle/fundamental right, it constitutes a cornerstone of the Union (Article 6(1) TEU). It is thus binding on both Member States and the EC/EU. Consequently, it governs the legality and interpretation of any measure adopted by EC/EU institutions, in any field. The ECJ has explicitly ruled that any act adopted by an EC institution in disregard of this principle “is vitiated by illegality”. It has more particularly reviewed the compatibility of an act of an EC institution with the prohibition of indirect discrimination on grounds of sex. It is thus obvious that the legality and interpretation of any EPSO act is governed by the gender equality principle and must comply with the prohibition of both direct and indirect discrimination on grounds of sex.
Moreover, the Amsterdam Treaty makes the promotion of gender equality a "task" and an "aim" of the Community (Art. 2 TEC) and imposes on the Community not only an anti-discrimination policy in respect of gender, but furthermore, the positive obligation to "eliminate inequalities" and to "promote equality between men and women” “in all its activities", as a fundamental horizontal objective (Art. 3(2) TEC. Thus, the EC Treaty imposes on all EC institutions and organs, when they exercise their respective powers, that they not only avoid discrimination on grounds of sex, but moreover, as underlined by AG Christine Stix-Hackl, that they “actively promote” gender equality . Since the EU is founded on the principles of liberty, democracy, respect of fundamental rights and freedoms of men and women (Art. 6(1) TEU), the level of protection of human rights and the obligation to eliminate inequalities must be the same for the Member States and the EU/EC itself.
II. Relevant provisions of the Staff Regulations in the light of EC law and ECJ case-law
As the case at hand concerns staff law, the relevant legislation is the Staff Regulations. The relevant provision is Art. 1(d) of the Staff Regulations. It provides as follows:
1. In the application of these Staff Regulations, any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation shall be prohibited. For the purposes of these Staff Regulations, non-marital partnerships shall be treated as marriage provided that all the conditions listed in Article 1(2)(c) of Annex VII are fulfilled.
2. With a view to ensuring full equality in practice between men and women in working life, which shall be an essential element to be considered in the implementation of all aspects of these Staff Regulations, the principle of equal treatment shall not prevent the institutions of the European Communities from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
3. The institutions shall determine, by agreement, after consulting the Staff Regulations Committee, measures and actions to promote equal opportunities for men and women in the areas covered by these Staff Regulations, and shall adopt the appropriate provisions notably to redress such de facto inequalities as hamper opportunities for women in these areas.
4. For the purposes of paragraph 1, a person has a disability if he has a physical or mental impairment that is, or is likely to be, permanent. The impairment shall be determined according to the procedure set out in Article 33. A person with a disability meets the conditions laid down in Article 28(e) if he can perform the essential functions of the job when reasonable accommodation is made. "Reasonable accommodation", in relation to the essential functions of the job, shall mean appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer.
5. Where persons covered by these Staff Regulations, who consider themselves wronged because the principle of equal treatment as set out above has not been applied to them, establish facts from which it may be presumed that there has been direct or indirect discrimination, the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment. This provision shall not apply in disciplinary proceedings.
6. While respecting the principle of non-discrimination and the principle of proportionality, any limitation of their application must be justified on objective and reasonable grounds and must be aimed at legitimate objectives in the general interest in the framework of staff policy. Such objectives may in particular justify stipulating a mandatory retirement age and a minimum age for drawing a retirement pension.
The prohibition of direct and indirect gender discrimination:
The provision quoted above explicitly prohibits both direct and indirect discrimination on grounds of sex (paras.1 and 5), and imposes the positive obligation to promote gender equality (paras. 2 and 3). However, it does not define either direct or indirect discrimination. Thus, it is the EC law definitions that apply. It is these definitions that the ECJ has used in staff cases, in particular regarding indirect discrimination. More particularly:
a) The Court's case law regarding indirect discrimination by EC/EU institutions, bodies and organs, in particular in Staff law: Even when Staff law did not yet contain an express equality provision, the Court reviewed the legality of acts based on provisions of the Staff Regulations in the light of the general gender equality principle and/or EC Treaty provisions which constitute concretizations of this principle, and in particular in the light of the prohibition of indirect discrimination. The first such cases were Sabbatini and Bauduin , where the Court annulled decisions of the European Parliament and the Commission, respectively, on the grounds that the Staff Regulations provision on which the impugned decisions were based introduced indirect gender discrimination against female officials, which was contrary to Article 119 (now 141) TEC (principle of equal pay for men and women). Another early case was Airola , where the Court annulled an indirectly discriminatory decision of the Commission, on the grounds that the Staff Regulations provision on which it was based should have been interpreted in such a way as to exclude indirect discrimination against female officials. The general obligation of any EU institution, organ or body to comply with fundamental principles/rights and objectives is recently underlined in Rinke and recalled by AG L.M. Poiares Maduro: in Spain v. Eurojust , where he also refers to indirect discrimination (here, concerning linguistic requirements). Another staff case concerning indirect discrimination (on grounds of age) is currently pending in the FIC.
b) The concept of indirect discrimination on grounds of sex: In reviewing the legality of EC/EU acts, the Court relies on the concept of indirect discrimination on grounds of sex, as elaborated by its case-law. According to this case law, “indirect discrimination arises where a […] measure, although formulated in neutral terms, works to the disadvantage of far more women than men”, “save where [it] is justified by objective criteria unrelated to any discrimination on grounds of sex”. The Court has identified certain criteria which are ‘suspect’ for creating indirect discrimination, such as the requirement of full-time work as a qualification for access to a job or post or for the calculation of seniority with a view to promotion. It has ruled that such a requirement “does constitute discrimination against female workers vis-à-vis male workers, if in fact a much lower (or “a considerably smaller”) percentage of men work on a part-time basis than women”.
Directive 2002/73, amending Directive 76/207, which entered in force on the day of its publication in the OJ (5 October 2002) contains, in Article 2(2), a definition of this concept inspired by the Court’s case-law. The Proposal for a Recast Directive repeats this definition, which will thus apply to all instances where indirect gender discrimination in employment is claimed. Therefore, it is this definition that must be taken into account in the case at hand, which reads as follows:
“indirect discrimination: where an apparently neutral 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.”
It must be noted that indirect gender discrimination in the above, currently prevailing, sense does not necessarily have to be established by elaborate statistical evidence of the “particular disadvantage”. Without being excluded, statistical evidence is just one of the means to be used.
Opinion
The European Women Lawyers Association maintains that the EPSO competition notices EPSO/AD/17/05, EPSO/AD/18/05, EPSO/AD/19/05 may well contain indirect gender discrimination in the abovementioned sense. This is so, because the requirement to have completed a certain amount of full-time working experience in order to participate in the described competitions, though apparently neutral, in practice puts female applicants at a particular disadvantage compared with male applicants, since part-time working women in Europe are far more than part-time working men, and this is common knowledge. The EPSO application requirements do not refer directly to gender and it appears that they can be fulfilled by men and women equally. However, the majority of employees working part-time are women .
It is common knowledge that, throughout the Union, a much lower percentage of men are working part-time than women. In particular, in 2002, according to Eurostat data, only 6,6% of working men were employed part-time, against 33,5% of working women. Moreover, in 2002, the percentage of part-timers in the Union (including candidate States), was 30% women and only 7% men. In 2004, in the Union of 25, the percentage of women among part-timers rose to 30,4%, while the percentage of men fell to 6,6%.
In 2003 in Finland 13 % of all employees worked part-time; 8,7 % of men and 17,7 % of women. The part-time working of women is not mainly connected to child care but to working along side studying or to unavailability of full-time work in Finland. However, it should be noted that a new form of part-time work was introduced to the Finnish labour law some years ago, namely the part-time child care leave. This allows parents to reduce their working time to 6 hours per day or 30 hours per week until the end of the second school year of their child. It is self-evident that most parents using this opportunity are women.
Prima facie gender discrimination being thus easily established, the EPSO must prove that this requirement is “objectively justified by a legitimate aim”, and that it is “appropriate and necessary” for achieving that aim, in the sense of art. 2(2) of Directive 2002/73. This objective justification must relate to the duties to be accomplished in the relevant posts, which seems not to be the case, at least from the elements given.
An interesting finding concerning the content, hence the value, of part-time work is reported by the Finnish labour organizations: often the amount of work required of workers on part-time child care leave is not reduced to correspond to the reduced working hours. Even though the working hours may be shorter, the employee must thus perform the same amount of work as when working full-time. This seems to be the case especially concerning work requiring higher education which makes the issue relevant to the full time working experience requirement in the EPSO competition notices. This also raises the over-all question whether there is any basis to consider part-time work a less valuable experience than full-time work.
By answering the question whether a condition is necessary and appropriate according to its objective, it is important to take into consideration the fact that the EPSO application condition does not only concern the exercise, but the access to a profession. The consequences of a restriction are severe, so that they can only be justified by considerable reasons.
The demand for a sufficient professional experience in order to guarantee a high qualification of the employees could be considered as an acceptable objective. Therefore, it is fully justified to ask for working experience as a standard criterion. In contrast, the demand for full-time experience is not necessary to achieve the aim.
The slight difference between a full-time employee and an employee who works, 50%- 75 % cannot justify an exclusion from the admission process. A part-time employee experiences the whole working life and gains an assimilable insight in the required tasks. However, it is the employers’ obligation to explain the necessity of the concrete working period required. Thus, experience could be assured without excluding part-time workers from competition.
Another possible objective is to guarantee the employees’ ability to work full-time if the new employment is also on a full-time basis. However, an exclusion of part-time workers is again not necessary and also quite problematic due to the fact that it prevents part-time employees from extending their professional activities. Moreover, the motivation for a full-time employment can still be verified during the application process or a probationary period.
The EPSO notices excluding part-time employees from competition are likely to reduce the number of female applications without cause. As there is no obvious reason for barring part-time employees, the criteria on full-time experience constitute gender discrimination.
The central question of the issue is whether there is a justification for treating part-time workers and full-time workers differently.
Objective justification
According to the Art. 1(d) 5 of staff regulations the onus shall be on the institution to prove that there has been no breach of the principle of equal treatment. Thus the EPSO has to show and prove that there are objective justifications for requiring full time working experience as the disparate effect of the notices in question has been shown.
We find no justification for requiring, in such a general and absolute way, the experience of full-time employment and totally excluding part-time employment. The Court stated in Nimz that, “although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in a particular case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours.” Consequently, the justification depends on the circumstances of each case and cannot be stated in a general and absolute manner.
Even if objective justifications can be brought forward, the general nature of the competition note is not proportionate. It goes too far by excluding any type of part-time work
Furthermore, the notice equates full-time work with experience without explaining what kind of experience is required and without giving the opportunity of showing that one has acquired this kind of experience in other contexts. This could be even outside paid work. It is possible, for example, that someone has acquired administrative experience by doing unpaid work for a charity.
Conclusion
Based on the grounds presented in this opinion the European Women Lawyers Association finds that the EPSO competition notices in question very probably constitute indirect gender discrimination.
ANNEX
NOTICE OF GENERAL COMPETITION
EUROPEAN PERSONNEL SELECTION OFFICE (EPSO)
____________________________
EPSO/AD/17/05 - Administrators (A*9) Finnish language
A university degree of at least four years plus at least 12 years’ full time professional experience related to one or several tasks listed under “duties” OR a university degree of at least three years plus at least 13 years’ full time professional experience related to one or several tasks listed under “duties”
Thorough knowledge of Finnish (main language) PLUS a satisfactory knowledge of English or French, (second language)
Citizenship of one of the Member States of the EU
On-line registration compulsory! Closing date: 11/07/05 - 12.00 noon Brussels time.
Publication date: 09/06/2005
Closing date: 11/07/2005
Official journal C 140 A
EPSO/AD/18/05 - Administrators (A*12) Finnish language
A university degree of at least four years plus at least 15 years’ full time professional experience related to one or several tasks listed under “duties” OR a university degree of at least three years plus at least 16 years’ full time professional experience related to one or several tasks listed under “duties”
Thorough knowledge of Finnish (main language) PLUS a satisfactory knowledge of English or French, (second language)
Citizenship of one of the Member States of the EU
On-line registration compulsory! Closing date: 11/07/05 - 12.00 noon Brussels time.
Publication date: 09/06/2005
Closing date: 11/07/2005
Official journal C 140 A
EPSO/AD/19/05 - Administrators (A*9) Swedish language
A university degree of at least four years plus at least 12 years’ full time professional experience related to one or several tasks listed under “duties” OR a university degree of at least three years plus at least 13 years’ full time professional experience related to one or several tasks listed under “duties”
Thorough knowledge of Swedish (main language) PLUS a satisfactory knowledge of English or French, (second language)
Citizenship of one of the Member States of the EU
On-line registration compulsory! Closing date: 11/07/05 - 12.00 noon Brussels time.
Publication date: 09/06/2005
Closing date: 11/07/2005
Official journal C 140 A
EPSO/AD/20/05 - Administrators (A*12) Swedish language
A university degree of at least four years plus at least 15 years’ full time professional experience related to one or several tasks listed under “duties” OR a university degree of at least three years plus at least 16 years’ full time professional experience related to one or several tasks listed under “duties”
Thorough knowledge of Swedish (main language) PLUS a satisfactory knowledge of English or French, (second language)
Citizenship of one of the Member States of the EU
On-line registration compulsory! Closing date: 11/07/05 - 12.00 noon Brussels time.
Publication date: 09/06/2005
Closing date: 11/07/2005
Official journal C 140 A
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