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13.5.5.  Equal treatment for men and women in the EU

    The original European Economic Community's concern for equality of the sexes - compared to its non-commitment in other important issues - stemmed from the fact that competition between Community countries could be distorted by the employment in some of them of women who were paid less than men for the same job. Moreover, unequal conditions of employment and remuneration between the sexes could be eliminated only through Community action, as no country could go it alone with a reform, which would be likely to alter conditions of competition to its detriment, in particular in industries employing large numbers of women.

    The original Member States did not hasten to take the legislative and administrative measures necessary in order to implement the principle of non-discrimination based on the sex, as they were invited to do by Article 119 (EEC). However, the Court of Justice in three famous judgments bearing the name of Gabrielle Defrenne, air hostess of Sabena, established that, although Article 119 had a horizontal direct effect and could be evoked in national courts, it needed interpretation by the Community legislative authority, particularly concerning indirect or disguised discriminations and equal working conditions other than payment [Cases 80/70, 43/75 and 149/77].

    The opinion of the Court was followed by the Commission in its proposals and finally by the Council, which adopted a Directive on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women [Directive 2006/54]. The purpose of this Directive is to eliminate any discrimination on grounds of sex as regards all aspects and conditions of pay. It calls on the Member States to "cleanse" their legal provisions of all discriminatory aspects and to repeal all collective or contractual provisions that were at variance with the principle of equal pay. Thus, for instance, the Court of Justice has established that the employers' contributions in favour of a pension scheme should be considered as part of gross payment and that, in this context, the burden of proof of non-discrimination based on sex should be borne by the employer [Cases 69/80 and 109/88].

    A Commission code of practice on the implementation of equal pay for work of equal value for women and men, drawn up in close collaboration with the social partners, aims to provide concrete advice for employers and collective bargaining partners at business level to ensure that the principle of equality is applied to all aspects of pay [COM/96/336]. The European Pact for Gender Equality (2011-2020) aims, in particular, to close the gender gaps in employment and social protection, including the gender pay gap, with a view to meeting the objectives of the Europe 2020 Strategy. In the same vein, the Commission recommends that Member States encourage public and private employers and social partners to adopt transparency policies on wage composition and structures [Recommendation 2014/124].

    Now, the principle of equality between the sexes is clearly established by the treaty of Lisbon. Article 8 of the Treaty on the functioning of the EU declares that in all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women. Article 157 of the TFEU (ex Article 141 TEC) stipulates that each Member State shall ensure the application of the principle that men and women should receive equal pay for equal work. This principle means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; and (b) that pay for work at time rates shall be the same for the same job. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment should not prevent any Member State 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.

    Equal pay was only one battle won in the war against discrimination against women, which was based on historical and cultural causes and was reinforced in practice by the education system, inadequate vocational guidance and the demanding role imposed on women as wives and mothers. Therefore, the abovementioned Directive on the implementation of the principle of equal treatment of men and women in matters of employment and occupation prohibits any indirect discrimination, i.e. the ways in which women are disadvantaged in relation to men in spite of apparently equal treatment, viz.: individual or collective contracts concerning employment and working conditions [Directive 2006/54]. For example, according to the ECJ, a discriminatory recruitment system is contrary to the Directive [Case C-318/86], as is a general exclusion of women from military posts involving the use of arms [Case C-285/98]. A specific Directive provides for the equal treatment between men and women and their spouses engaged in an activity in a self-employed capacity, or contributing to the pursuit of such activity [Directive 2010/41]. It should be noted that the Directives on the equal treatment of men and women complete Directive 2000/78 laying down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation [see section 6.4.1].

    The principle of equal opportunity means, among other things, that there should be no discrimination based on sex especially as regards: the scope and the conditions governing the right to any work regime; the calculation of contributions; the calculation of benefits and the conditions governing the duration and preservation of pension rights. Two Directives concern, indeed, the implementation of the principle of equal treatment for men and women in matters of social security [Directive 79/7] and in occupational social security schemes [Directive 86/378 repealed by Directive 2006/54]. According to the ECJ, the provisions concerning social security do not apply to women who have never been employed, those who do not look for a job and those who have voluntarily stopped working [Joined cases 48/88, 106/88 and 107/88].

    On the contrary, again according to the Court, the principle of non-discrimination applies indifferently to both men and women. Indeed, in its "Barber" judgment the Court of Justice held that any sex discrimination in the granting or calculation of an occupational pension, notably the differentiation of the age of pension according to the sex, is prohibited by Article 119 (EEC) [Case C-262/88]. As the Barber judgment had important financial implications for the professional schemes of social security, the Council amended the 1986 Directive in order to bring it into line with Article 119 of the EEC Treaty as interpreted by the Court in this judgment [Directive 96/97]. According to the Court, however, different treatment of stable relationships between two persons of the same sex and marriages or stable relationships outside marriage between persons of opposite sex in matters of social security, does not constitute discrimination directly based on sex [Case C-249/96].

    Measures must be taken in all Member States to improve the health and safety protection of women workers who are pregnant, have just given birth or are breast-feeding [Directive 92/85, see also section 13.5.7]. These measures on the one hand prohibit the dismissing of the women workers in question and their exposure to specific agents or working conditions which could endanger their health and safety, and on the other ensure the preservation of the rights derived from the employment contract and of maternity leave of at least fourteen consecutive weeks. In addition, according to the ECJ, the non-recruitment of pregnant women or the laying off of women who have a bad health condition after having given birth are discriminatory and cannot be tolerated [Cases C-177/88 and C-179/88]. The dismissal would be illegal even if the worker was recruited for a fixed period and because of her pregnancy was unable to work during a substantial part of the term of the contract [Case C-109/00]. A Declaration to the Final Act of the Amsterdam European Council of June 1997 urges the Member States, when adopting measures referred to in Article 141 (TEC) to aim at improving the situation of women in working life.

    Under the European legislation and the case law of the Court of Justice, any woman who feels that she is the subject of discrimination on grounds of sex or her matrimonial or family situation may bring proceedings before the national courts and enjoy, in so doing, legal protection against any attempt at reprisals on the part of her employer. She can directly, or through the Commission, bring the matter before the Court of Justice. According to the case-law of the Court of Justice, national courts must be consistent in ensuring the full effect of European rules, where necessary disregarding any national provisions to the contrary [Case C-345/89]. Following the "Bilka" judgment, the national court must determine if a discriminatory practice is objectively justifiable on reasons other than the sex and if it is proportionate [Case 170/84]. Consolidating the relevant case law of the Court of Justice, notably the Worringham case mentioned above, the European law places the burden of proof in cases of discrimination based on sex on the defendant (employer) rather than on the plaintiff (employee) [Directive 2006/54].

    However, in the "Kalanke" case the Court held that national rules giving absolute and unconditional priority to women holding the same qualifications as their male counterparts would also entail sex-based discrimination [Case C-450/93]. In this case, the Court has not condemned the implementation of positive action measures in general, but only a rigid quota system under which there is no possibility of taking particular individual circumstances into account. Thus, in another case the Court has held that a candidate belonging to the under-represented sex may be granted preference over a competitor of the opposite sex, provided that the candidates possess equivalent or substantially equivalent merits [Case C-407/98].

    But equal treatment for men and women would lead to a high level of female unemployment as long as the occupational qualifications of the sexes were not the same. For that reason, the equal opportunities dimension is increasingly taken into consideration in other common policies, notably on employment and on vocational training [see sections 13.3.2 and 13.4.2]. The common employment strategy provides a good example of the positive consequences of incorporating the gender dimension into a broadly coordinated economic process.

    The gender balance of sexes in economic activities is affected by structural economic change, in particular the growing role of services, the new technologies and the new flexibilities of work contracts that public and private enterprises are seeking. This is especially relevant to homeworking and teleworking, which offer significant opportunities for women, but under certain conditions. Positive and sustained action is needed to maximise the opportunities and reduce the dangers. A Resolution of the Council and of the representatives of the Member States on equal participation by women in an employment-intensive economic growth strategy aims at improving the flexibility of working hours, promoting a high level of skills among women and encouraging self-employment and the creation of businesses by women. A Council Recommendation aims to promote the balanced participation of women and men at all levels of the decision-making process in the political, economic, social and cultural life. An EU programme coordinates, supports and finances the implementation of horizontal activities in the fields covered by the European framework strategy on gender equality, whilst also complementing the EU action programme on combating discrimination in general [Decision 2001/51 last amended by Decision 1554/2005, see section 6.4.1]. Another action programme assists organisations working to promote equality between men and women, notably the European women's lobby [Decision 848/2004 last amended by Decision 1554/2005].

    Responding to a Council Resolution, the Commission adopted, on November 27, 1991, a Recommendation combined with a Code of Good Practice on the protection of the dignity of women and men at work in which it invites the Member States to take steps with a view to improving the prevention of and fight against all forms of sexual harassment. A Resolution of the Council and the representatives of the governments of the Member States calls on the latter to take action aimed at promoting and disseminating a diversified and realistic image of men and women in advertising and the media.

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