Proposal for a COUNCIL DIRECTIVE ESTABLISHING A GENERAL FRAMEWORK FOR EQUAL TREATMENT IN EMPLOYMENT AND OCCUPATION
C 177 E/42 EN Official Journal of the European Communities 27. 6. 2000 Proposal for a Council Directive establishing a general framework for equal treatment in employment and occupation (2000/C 177 E/07) (Text with EEA relevance) COM(1999) 565 final - 1999/0225(CNS) (Submitted by the Commission on 6 January 2000) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 13 thereof, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament, Having regard to the opinion of Committee, the Economic and Social Having regard to the opinion of the Committee of Regions, Whereas: (1) The European Union is founded on the principles of liberty, democracy, respect for human rights and funda- mental freedoms, and the rule of law, principles which are common to all Member States. In accordance with Article 6(2) of the Treaty on European Union, the Union should respect fundamental rights as guaranteed by the European the protection of Human Rights and Convention for of general Fundamental Community law. Freedoms, principles as (2) Article 13 of the Treaty establishing the European Community empowers the Council to take appropriate actions to combat discrimination based on sex, racial or ethnic origin, religion or beliefs, disability, age or sexual orientation. (3) The principle of equal treatment on grounds of sex is well established by a considerable body of Community law, in particular in Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal for men and women as regards access to treatment training and promotion, and employment, vocational conditions (1). The Treaty the working European Community empowers the Council to adopt measures to ensure the application of the principle of eqal opportunities and equal treatment of men and women in matters of employment and occupation. establishing (1) OJ L 39, 14. 2. 1976, p. 40. (4) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, UN Covenants on Civil and Political Rights and on Economic Social and Cultural Rights, of which all Member States are signatories; whereas ILO Convention No 111 prohibits field of employment and occupation. discrimination in the (5) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination, including the need to take appro- priate action for the social and economic integration of elderly and disabled people. (6) The Treaty establishing the European Community includes among its objectives the promotion of coordination between employment policies of the Member States. To this end, a new employment chapter was incorporated in the Treaty establishing the European Community, as a means of developing a coordinated European strategy for employment trained and adaptable workforce. to promote a skilled, (7) The 1999 Employment Guidelines agreed by the European Council at Vienna on 11 and 12 December 1998 stress the need to foster conditions for a more active partici- pation in the labour market by formulating a coherent set of policies aimed at combating discrimination on grounds of disability and race or ethnic origin. The European Council Conclusions of Vienna emphasise the need to pay particular attention to supporting older workers, in order to increase their participation in the labour force. (8) Employment and occupation are key elements in guaran- teeing equal opportunities for all and strongly contribute to the full participation of citizens in economic, cultural and social life. (9) Discrimination based on racial or ethnic origin, religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the Treaty estab- lishing the European Community, the attainment of a high level of employment and of social the raising of protection, living and quality of life, economic and social cohesion and soli- darity, and the fostering of the free movement of persons. the standard of in particular 27. 6. 2000 EN Official Journal of the European Communities C 177 E/43 (10) To this end any direct or indirect discrimination based on racial or ethnic origin, religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive the Community. Harassment which produces an intimidating, hostile, offensive or distribuing work environment in relation to any discriminatory ground should be deemed to be discrimination. throughout prohibited should be any that laws, (20) Member States should take the necessary measures to ensure administrative provisions, collective agreements, internal rules of under- takings or rules governing independent occupations, professions, or trade organisations which are contrary to the principle of equal treatment should be declared null and void, or should be amended. regulations, (11) The provision of measures to accommodate the needs of disabled people at the workplace play an important role in combating discrimination on grounds of disability. (21) Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obli- gations under this Directive. (12) A difference of treatment may be justified where a char- acteristic related to a discriminatory ground constiutes a genuine occupational qualification. (13) The European Union in its Declaration on the status of churches and non-confessional organisations, attached to the Amsterdam Treaty, has explicitly recognised that it status which respects churches communities enjoy in the Member States under national law and that it status of philosophical and non-confessional organisations. and does not prejudice and religious the associations or equally respects the (14) The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures providing for specific adventages to prevent, reduce or eliminate inequalities associated with the abovementioned discriminatory grounds. (15) The provisions of this Directive lay down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State. (16) It is important to ensure that persons who have been legal subject to discrimination have adequate means of protection. Associations or legal entities must also be empowered to exercise the right of defence on behalf of any victim. (22) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty estab- lishing the European Community, the objectives of this Directive, namely the creation, within the Community, of a level playing-field as regards equality in employment and occupation, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the proposed action, be better achieved by to the the Community. This Directive confines itself minimum required in order to achieve those objectives and does not go beyond what that purpose, is necessary for HAS ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Purpose into effect this Directive is to put in the The purpose of treatment as regards Member States the principle of equal including promotion, access to employment and occupation, vocational training, employment conditions and membership of certain organisations, of persons irrespective of racial or ethnic origin, religion or belief, disability, age or sexual orien- tation. Article 2 Concept of discrimination (17) The effective implementation of the principle of equality requires adequate judicial protection in civil matters against victimisation and an adjustment of the general rules on the burden of proof. 1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever between persons on any of the grounds referred to in Article 1. (18) Member States should provide adequate information on the provisions adopted pursuant to this Directive. 2. For the purposes of paragraph 1: (19) Member States should promote social dialogue between the social partners to address different forms of discrimi- nation in the workplace and to combat them. (a) direct discrimination shall be taken to occur where, on any of the grounds referred to in Article 1, one person is treated less favourably than another is, has been or would be treated. C 177 E/44 EN Official Journal of the European Communities 27. 6. 2000 (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice is liable to affect adversely a person or persons to whom any of the grounds that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving it are appro- priate and necessary. referred to in Article 1 applies, unless Harassment of a person related to any of the discrimi- 3. natory grounds and areas referred to in Article 1 which has the purpose or effect of cerating an intimidating, hostile, offensive or disturbing environment, shall be deemed to be discrimi- nation within the meaning of paragraph 1. 2. Member States may provide that, in the case of public or private organisations which pursue directly and essentially the aim of ideological guidance in the field of religion or belief with respect to education, information and the expression of opinions, and for the particular occupational activities within those organisations which are directly and essentially related to that aim, a difference of treatment based on a relevant char- acteristic related to religion or belief shall not constitute discrimination where, by reason of these activities, the characteristic constitutes a genuine occupational qualification. the nature of Article 5 Justification of differences of treatment on grounds of age 4. In order to guarantee compliance with the principle of equal treatment for persons with disabilities, reasonable accom- to enable such modation shall be provided, where needed, to, participate in, or advance in persons employment, unless an undue hardship. to have access requirement creates this treatment, (a) of Article 2(2), the following Notwithstanding point in particular, shall not constitute differences of direct discrimination on grounds of age, if they are objectively and reasonably justified by a legitimate aim and are appropriate and necessary to the achievement of that aim: Article 3 Material scope (a) the prohibition on access to employment or the provision of special working conditions to ensure the protection of young people and older workers; This Directive shall apply to: (a) conditions for access to employment, self-employment and including selection criteria and recruitment occupation, conditions, whatever the sector or branch of activity and at all including promotion; the professional hierarchy, levels of (b) access to all types and to all levels, of vocational guidance, training and advanced vocational training, vocational retraining; (c) employment and working conditions, including dismissals and pay; (d) membership of and involvement in an organisation of workers or employers, or any other organisation whose members carry on a particular profession, including the benefits provided for by such organisations. Article 4 Genuine occupational qualifications 1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a the discriminatory grounds characteristic related to any of referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine occupational qualification. (b) the fixing of a minimum age as a condition of eligibility for retirement or invalidity benefits; (c) the fixing of different ages for employees or groups or categories of employees for entitlement to retirement or invalidity benefits on grounds of physical or mental occu- pational requirements; (d) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement; (e) the establishment of requirements concerning the length of professional experience; (f) the establishment of age limits which are appropriate and legitimate labour market the pursuit of necessary for objectives. Article 6 Positive action This Directive shall be without prejudice to the right of the Member States to maintain or adopt measures intended to prevent or compensate for disadvantages concerning persons to whom any of the discriminatory grounds referred to in Article 1 apply. 27. 6. 2000 EN Official Journal of the European Communities C 177 E/45 Article 7 Minimum requirements 1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than thos laid down in this Directive. The implementation of 2. this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive. CHAPTER II REMEDIES AND ENFORCEMENT Article 8 Defence of rights 1. Member States shall ensure that judicial and/or adminis- trative procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the employment relationship has ended. 2. Member States shall ensure that associations, organi- sations or other legal entities may pursue any judicial and/or administrative procedure provided for the enforcement of obli- gations under this Directive on behalf of the complainant with his or her approval. Article 9 Burden of proof 1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct it shall be for the respondent to or indirect discrimination, prove that the principle of equal treatment. there has been no breach of 2. Paragraph 1 shall not prevent Member States from intro- ducing rules of evidence which are ore favourable to plaintiffs. Paragraph 1 shall not apply to criminal procedures, 3. unless otherwise provided by the Member States. Paragraphs 1, 2 and 3 shall 4. proceedings commenced in accordance with Article 8(2). apply to any legal dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment. Article 11 Dissemination of information 1. Member States shall ensure that adequate information on the provisions adopted pursuant to this Directive is provided to vocational training and educational bodies and is adequately disseminated within the workplace. 2. Member States shall ensure that competent public auth- orities are informed by appropriate means as regards all national measures taken pursuant to this Directive. Article 12 Social dialogue 1. Member States shall take adequate measures to promote the social dialogue between the two sides of industry with a view to fostering equal treatment, through the monitoring of workplace practices, collective agreements, codes of conduct, research or exchange of experiences and good practices. the 2. Member States shall encourage the two sides of industry to conclude, at the appropriate level, including at undertaking level, agreements laying down anti-discrimination rules in the fields referred to in Article 3 which fall within the scope of collective bargaining. These agreements shall respect this Directive and the relevant national implementing measures. CHAPTER III FINAL PROVISIONS Article 13 Compliance Member States shall take the necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished; Article 10 Victimisation Member States shall introduce into their national legal systems such measures as are necessary to protect employees against (b) any provisions contrary to the principle of equal treatment individual which are included in collective agreements, internal rules of undertakings contracts of employment, or rules governing the independent occupations and professions and workers’ and employers’ organisations, are declared null and void or are amended. C 177 E/46 EN Official Journal of the European Communities 27. 6. 2000 Article 14 Penalties Member States shall determine how such reference is to be made. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by the date specified in Article 15 at the latest and shall notify it without delay of any subsequent amendment affecting them. Article 16 Report the date mentioned in Article 15, all Member States shall communicate to the Commission, within two years of the the Commission to draw up a information necessary for report to the European Parliament and the Council on the application of this Directive. Article 15 Implementation Article 17 Entry into force Member States shall adopt the laws, regulations and adminis- trative provisions necessary to comply with this Directive by 31 December 2002. They forthwith inform the Commission thereof. shall When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a their official publication. reference on the occasion of This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. Article 18 Addressees This Directive is addressed to the Member States