The European Parliament adopted a resolution drafted by Angelika NIEBLER (EPP-ED, DE) and approved the Council’s common position.

The Commission considers that the common position in no way alters the aims and approach of its proposal and can therefore support it, all the more so because the common position takes due account of amendments proposed by the European Parliament at its first reading and of the amended Commission proposal. It is the result of inter-institutional discussions which have produced this compromise text. The Commission and the made separate statements at the time of adoption of the common position.

The Commission states that it is committed to the promotion of parental leave as an instrument of paramount importance in order to achieve full equality between men and women in working life. It is determined to ensure that the conditions of reconciliation between work and private life are improved through the proper implementation of the parental leave Directive and the monitoring of its sufficiency and effectiveness.

The Commission intends to designate the area of reconciliation between work and private life as one of its priority objectives in the roadmap for equality between women and men which has been adopted on 1st of March 2006. In that context it is foreseen to carry out an analysis of the situation concerning all areas of reconciliation including parental leave, flexible working arrangements and care facilities with a view to developing policy responses where appropriate. The initiation of an exchange of views with the social partners will constitute an element of these activities.

It should be noted that the Common Position was agreed on the basis of informal tripartite negotiations, following a series of meetings between the Presidency in office (LUX and UK), the rapporteur and shadow rapporteurs and the relevant representatives of the Commission. On 8 December 2005, the EPSCO Council reached political agreement on this text and, as part of the compromise agreement with the Parliament, both the Council and the Commission presented statements for the Council minutes relating to parental leave In its first reading on 6 July 2005, the European Parliament adopted 93 amendments. European Parliament amendments accepted by the Council. In its common position, the Council took into account 74 amendments.

The Council considers that, as a whole, the Common Position is in line with the fundamental objectives of the Commission's amended proposal. The Council also considers that, wherever possible within the confines of the recast procedure, it has taken account of the principal objectives pursued by the European Parliament in its amendments to the original Commission proposal.

As regards several recitals newly introduced by the European Parliament and accepted by the Commission in its amended proposal relating to the need for Member States to address gender-based wage differentials and labour market segregation, to develop and analyse statistics disaggregated by sex

and to promote the raising of awareness of wage discrimination, the Council incorporated the notion of the necessity to continue these efforts in order to avoid creating the impression that these activities are not already ongoing.

In its amended proposal, the Commission rejected the insertion of a new paragraph (2)(d) in Article 20 adding the exchange of data and know-how with corresponding European bodies such as the European Institute for Gender Equality to the tasks of the equality bodies to be established under that provision. This position was taken for technical reasons related to proper legislative drafting as no reference should be made to an institution that does not yet exist. These concerns were accommodated in the new text by making mention of corresponding European bodies such as any future European Institute for Gender Equality. This wording can be accepted.

With regard to the Article on social dialogue, the Council accepted the European Parliament's amendment broadening the reference to the term “workplace” as reformulated by the Commission but refused to include new wording on research by the social partners being carried out on the basis of the development and analysis of gender-specific data.

Still in relation to the provision on social dialogue, information provided by the employer on equal treatment in the undertaking is one of the means of the promotion of equal treatment in a planned and systematic way. The Council endorsed the Commission's suggestion to align the wording with the other paragraphs by stipulating that employers shall (instead of should) be encouraged to undertake such efforts. It did not accept the further proposal in the amended Commission proposal to use the term “should” in the second subparagraph implying a stronger exhortation to make available the specific information mentioned there and reverted to the wording “may” from the original proposal. It did, however, incorporate, subject to a clarifying reformulation, the proposal by the European Parliament, seconded by the Commission, to be more detailed on the issues on which to make information available. In its entirety, this compromise solution is acceptable to the Commission.

The Council agreed to move the obligation for Member States to submit a report containing an assessment of exceptions to the principle of equal treatment on the grounds that a characteristic related to sex constitutes a genuine and determining occupational requirement from Article 13 to Article 31, the general provision dealing with reporting obligations, as a new paragraph 3. It changed the frequency of such reporting from every four years, as suggested by the European Parliament and by the Commission in its amended proposal, to "periodically but at least every eight years". This can be accepted as it still represents some progress compared to the current requirement of periodical assessment without any fixed deadlines.

Concerning the set of interrelated deadlines for transposition of the Directive (Article 33), for the implementation reports by the Member States (Article 31) and for a review of the operation of the Directive by the Commission (Article 32), the Council took the middle ground between the different positions of the institutions. It accepted a short transposition period of two years as called for by the European Parliament and by the Commission in its amended proposal in principle, but included

the possibility for Member States facing particular difficulties to extend the transposition period to three years. Uniform deadlines were established for the implementation reports and the review at four and a half years and six and a half years after entry into force of the Directive respectively.

The Council further introduced some changes unrelated to the European Parliament's amendments. These modifications are of a formal and technical nature and do not alter the substance of the proposal. They include, for example, the merger of Articles 19 and 20 of the initial proposal into one single provision on the burden of proof in discrimination cases (Article 19) and the shortening of the headings of Chapters 1, 2 and 3 of Title II as well as Chapter 2 of Title III. To create a clearer structure, the Council converted Title IV of the Commission's proposal into Chapter 3 of Title III under the heading "General horizontal provisions". The Council also inserted a new recital 41 that paraphrases paragraph 34 of the Inter-institutional agreement on better law-making.

Council statement

The Council shares the European Parliament's commitment to improving the situation regarding reconciliation between work and private life in order to achieve equality between women and men in working life. It is therefore pleased that the European Commission plans to take up the theme of women's employment and work-life balance as the central part of its Third Annual Report to Heads of State and Government on equality between women and men, to be presented to the Spring European Council in March 2006. In this context, the Council takes note of the importance that the European Parliament attaches to the subject of parental leave.

It should be noted that the Common Position was agreed on the basis of informal tripartite negotiations, following a series of meetings between the Presidency in office (LUX and UK), the rapporteur and shadow rapporteurs and the relevant representatives of the Commission. On 8 December 2005, the EPSCO Council reached political agreement on this text and, as part of the compromise agreement with the Parliament, both the Council and the Commission presented statements for the Council minutes relating to parental leave In its first reading on 6 July 2005, the European Parliament adopted 93 amendments. European Parliament amendments accepted by the Council. In its common position, the Council took into account 74 amendments.

The Council considers that, as a whole, the Common Position is in line with the fundamental objectives of the Commission's amended proposal. The Council also considers that, wherever possible within the confines of the recast procedure, it has taken account of the principal objectives pursued by the European Parliament in its amendments to the original Commission proposal.

As regards several recitals newly introduced by the European Parliament and accepted by the Commission in its amended proposal relating to the need for Member States to address gender-based wage differentials and labour market segregation, to develop and analyse statistics disaggregated by sex

and to promote the raising of awareness of wage discrimination, the Council incorporated the notion of the necessity to continue these efforts in order to avoid creating the impression that these activities are not already ongoing.

In its amended proposal, the Commission rejected the insertion of a new paragraph (2)(d) in Article 20 adding the exchange of data and know-how with corresponding European bodies such as the European Institute for Gender Equality to the tasks of the equality bodies to be established under that provision. This position was taken for technical reasons related to proper legislative drafting as no reference should be made to an institution that does not yet exist. These concerns were accommodated in the new text by making mention of corresponding European bodies such as any future European Institute for Gender Equality. This wording can be accepted.

With regard to the Article on social dialogue, the Council accepted the European Parliament's amendment broadening the reference to the term “workplace” as reformulated by the Commission but refused to include new wording on research by the social partners being carried out on the basis of the development and analysis of gender-specific data.

Still in relation to the provision on social dialogue, information provided by the employer on equal treatment in the undertaking is one of the means of the promotion of equal treatment in a planned and systematic way. The Council endorsed the Commission's suggestion to align the wording with the other paragraphs by stipulating that employers shall (instead of should) be encouraged to undertake such efforts. It did not accept the further proposal in the amended Commission proposal to use the term “should” in the second subparagraph implying a stronger exhortation to make available the specific information mentioned there and reverted to the wording “may” from the original proposal. It did, however, incorporate, subject to a clarifying reformulation, the proposal by the European Parliament, seconded by the Commission, to be more detailed on the issues on which to make information available. In its entirety, this compromise solution is acceptable to the Commission.

The Council agreed to move the obligation for Member States to submit a report containing an assessment of exceptions to the principle of equal treatment on the grounds that a characteristic related to sex constitutes a genuine and determining occupational requirement from Article 13 to Article 31, the general provision dealing with reporting obligations, as a new paragraph 3. It changed the frequency of such reporting from every four years, as suggested by the European Parliament and by the Commission in its amended proposal, to "periodically but at least every eight years". This can be accepted as it still represents some progress compared to the current requirement of periodical assessment without any fixed deadlines.

Concerning the set of interrelated deadlines for transposition of the Directive (Article 33), for the implementation reports by the Member States (Article 31) and for a review of the operation of the Directive by the Commission (Article 32), the Council took the middle ground between the different positions of the institutions. It accepted a short transposition period of two years as called for by the European Parliament and by the Commission in its amended proposal in principle, but included

the possibility for Member States facing particular difficulties to extend the transposition period to three years. Uniform deadlines were established for the implementation reports and the review at four and a half years and six and a half years after entry into force of the Directive respectively.

The Council further introduced some changes unrelated to the European Parliament's amendments. These modifications are of a formal and technical nature and do not alter the substance of the proposal. They include, for example, the merger of Articles 19 and 20 of the initial proposal into one single provision on the burden of proof in discrimination cases (Article 19) and the shortening of the headings of Chapters 1, 2 and 3 of Title II as well as Chapter 2 of Title III. To create a clearer structure, the Council converted Title IV of the Commission's proposal into Chapter 3 of Title III under the heading "General horizontal provisions". The Council also inserted a new recital 41 that paraphrases paragraph 34 of the Inter-institutional agreement on better law-making.

Council statement

The Council shares the European Parliament's commitment to improving the situation regarding reconciliation between work and private life in order to achieve equality between women and men in working life. It is therefore pleased that the European Commission plans to take up the theme of women's employment and work-life balance as the central part of its Third Annual Report to Heads of State and Government on equality between women and men, to be presented to the Spring European Council in March 2006. In this context, the Council takes note of the importance that the European Parliament attaches to the subject of parental leave.

Having examined in detail Parliament’s amendments to the draft Directive the Commission sets out its position on which amendments it deems acceptable.

Many are accepted in their entirety, subject to some reformulations; others are accepted in part whilst eleven are rejected out right. Of the amendments accepted in part, most of the changes refer to editorial issues or cases where articles have been renames. For example, changes to Title III, Chapter 1 allow the Directive to become more easily readable. The other amendments accepted in part or in principle refer, inter alia, to:

- Amendment 2, concerning the discrimination of trans-sexuals on the grounds of sex, prohibited as such by ECJ case law. Given the subtleties in defining trans-sexuality, the Commission proposes creating a separate recital that is specifically dedicated to this issue. The recital will clarify that the discrimination of transsexuals falls within the scope of this Directive.

- Regarding the question of pregnancy and maternity protection, the Commission agrees with the proposed Parliamentary amendments given that they are in line with ECJ case law.

- On the question of paternal leave and leave for the adoption of children the Commission, whilst accepting the spirit of the Parliamentary amendments, proposes to merge the two amendments and create a new recital essentially extending the same considerations to adoption leave.

Concepts rejected by the Commission include:

- Highlighting ethnic minority women as a particularly vulnerable group.

- New language on the relationship between compensation and sanctions.

- References to “full-time or part time employment” and “job titles”.

- New review clauses of the parental leave Directive since this would imply a substantive change to the parental leave Directive.

- The Commission accepts the need to keep the period of transposition for the Directive to two years given the limited number of modifications that need to be transposed as a result of the recast. However, allowing for only one further year for Member States to report on the application of the Directive is not deemed suitable, in view of the limited time-frame.

The amendments rejected by the Commission are:

- The proposed amendment adding the right to parental leave in connection with the Charter of Fundamental Rights of the European Union. The Commission believes that the additional text makes reference to a matter, which is not dealt with in this Directive.

- Amendments referring to the use of sex-based actuarial factors in occupational systems of social security and with those adopted for private insurance contracts.

- An amendment that deletes references to non-verbal conduct in the definition of sexual harassment.

- The Commission deems the proposed Parliamentary amendment on the definition of “promotion at work” unacceptable. It does so on the grounds that the term has not given rise to any difficulties in the past and thus any reference to it is superfluous.

- An amendment on “positive action”. EU primary legislation makes it clear that positive measures are admissible but not mandatory. Thus, EU secondary legislation cannot impose obligations going beyond what is stated in the Treaty text. Similarly, references to childcare are not within the scope of this Directive, which is limited to employment and occupations (other than in the relatively few cases where the employer offers childcare facilities). The Commission fears that keeping this amendment could lead to confusion.

- The Commission also rejects amendments, which seek to include ‘remedies’ in the text of the Directive.

Having examined in detail Parliament’s amendments to the draft Directive the Commission sets out its position on which amendments it deems acceptable.

Many are accepted in their entirety, subject to some reformulations; others are accepted in part whilst eleven are rejected out right. Of the amendments accepted in part, most of the changes refer to editorial issues or cases where articles have been renames. For example, changes to Title III, Chapter 1 allow the Directive to become more easily readable. The other amendments accepted in part or in principle refer, inter alia, to:

- Amendment 2, concerning the discrimination of trans-sexuals on the grounds of sex, prohibited as such by ECJ case law. Given the subtleties in defining trans-sexuality, the Commission proposes creating a separate recital that is specifically dedicated to this issue. The recital will clarify that the discrimination of transsexuals falls within the scope of this Directive.

- Regarding the question of pregnancy and maternity protection, the Commission agrees with the proposed Parliamentary amendments given that they are in line with ECJ case law.

- On the question of paternal leave and leave for the adoption of children the Commission, whilst accepting the spirit of the Parliamentary amendments, proposes to merge the two amendments and create a new recital essentially extending the same considerations to adoption leave.

Concepts rejected by the Commission include:

- Highlighting ethnic minority women as a particularly vulnerable group.

- New language on the relationship between compensation and sanctions.

- References to “full-time or part time employment” and “job titles”.

- New review clauses of the parental leave Directive since this would imply a substantive change to the parental leave Directive.

- The Commission accepts the need to keep the period of transposition for the Directive to two years given the limited number of modifications that need to be transposed as a result of the recast. However, allowing for only one further year for Member States to report on the application of the Directive is not deemed suitable, in view of the limited time-frame.

The amendments rejected by the Commission are:

- The proposed amendment adding the right to parental leave in connection with the Charter of Fundamental Rights of the European Union. The Commission believes that the additional text makes reference to a matter, which is not dealt with in this Directive.

- Amendments referring to the use of sex-based actuarial factors in occupational systems of social security and with those adopted for private insurance contracts.

- An amendment that deletes references to non-verbal conduct in the definition of sexual harassment.

- The Commission deems the proposed Parliamentary amendment on the definition of “promotion at work” unacceptable. It does so on the grounds that the term has not given rise to any difficulties in the past and thus any reference to it is superfluous.

- An amendment on “positive action”. EU primary legislation makes it clear that positive measures are admissible but not mandatory. Thus, EU secondary legislation cannot impose obligations going beyond what is stated in the Treaty text. Similarly, references to childcare are not within the scope of this Directive, which is limited to employment and occupations (other than in the relatively few cases where the employer offers childcare facilities). The Commission fears that keeping this amendment could lead to confusion.

- The Commission also rejects amendments, which seek to include ‘remedies’ in the text of the Directive.

The European Parliament adopted a resolution drafted by Angelika NIEBLER (PPE-DE DE), and made several amendments to the Commission’s text. (Please see the document of 26/05/2005.) A large number of amendments are intended to improve the structure of the legislation. Other amendments include the following:

- parental leave is an individual right of every parent;

- there is a definition of "professional promotion" so that the concept cannot be abused to avoid equal opportunities requirements;

- Member States should ensure that any less favourable treatment of a woman who is pregnant or on maternity leave is also deemed to be discriminatory;

- M ember States should ensure that the social partners promote flexible working arrangements with the aim of facilitating the reconciliation of work and private life.

- A new clause on positive action states that, with a view to ensuring full equality in practice between men and women in working life, Member States shall maintain and adopt measures such as measures to promote the provision of affordable childcare and care for other dependent persons and measures concerning access to employment and vocational training, promotion at work and working conditions.

- In the case of defined-contribution schemes funded by capital accumulation, unequal levels of benefit may be set in certain circumstances where the unequal nature of the payments is attributable to actuarial calculation factors which differ according to sex. Member States should ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. All information communicated by the Member States to the Commission should include accurate data relevant to the use of sex as a determining actuarial factor which should be compiled, published and regularly updated.

- Member States shall ensure that employers promote equal treatment for women and men in a planned and systematic way in vocational training, access to employment, promotion at work and working conditions. Member States shall also conduct awareness campaigns for employers and, more generally, for the public on matters relating to equal opportunities in the field of employment and occupation.

- Member States shall ensure that employers take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace, in access to employment, in vocational training and advancement and in working conditions.

- By three years after the date of entry into force of the Directive, the Member States shall communicate to the Commission, all the information necessary for the Commission to draw up a report on the application of the Directive.

- By five years after the date of entry into force of the Directive, the Commission will review its operation.

The European Parliament adopted a resolution drafted by Angelika NIEBLER (PPE-DE DE), and made several amendments to the Commission’s text. (Please see the document of 26/05/2005.) A large number of amendments are intended to improve the structure of the legislation. Other amendments include the following:

- parental leave is an individual right of every parent;

- there is a definition of "professional promotion" so that the concept cannot be abused to avoid equal opportunities requirements;

- Member States should ensure that any less favourable treatment of a woman who is pregnant or on maternity leave is also deemed to be discriminatory;

- M ember States should ensure that the social partners promote flexible working arrangements with the aim of facilitating the reconciliation of work and private life.

- A new clause on positive action states that, with a view to ensuring full equality in practice between men and women in working life, Member States shall maintain and adopt measures such as measures to promote the provision of affordable childcare and care for other dependent persons and measures concerning access to employment and vocational training, promotion at work and working conditions.

- In the case of defined-contribution schemes funded by capital accumulation, unequal levels of benefit may be set in certain circumstances where the unequal nature of the payments is attributable to actuarial calculation factors which differ according to sex. Member States should ensure that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated. All information communicated by the Member States to the Commission should include accurate data relevant to the use of sex as a determining actuarial factor which should be compiled, published and regularly updated.

- Member States shall ensure that employers promote equal treatment for women and men in a planned and systematic way in vocational training, access to employment, promotion at work and working conditions. Member States shall also conduct awareness campaigns for employers and, more generally, for the public on matters relating to equal opportunities in the field of employment and occupation.

- Member States shall ensure that employers take effective measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace, in access to employment, in vocational training and advancement and in working conditions.

- By three years after the date of entry into force of the Directive, the Member States shall communicate to the Commission, all the information necessary for the Commission to draw up a report on the application of the Directive.

- By five years after the date of entry into force of the Directive, the Commission will review its operation.

The committee adopted the report by Angelika NIEBLER (EPP-ED, DE) broadly approving the proposal under the 1st reading of the codecision procedure, subject to a number of amendments, many of which were aimed at restructuring the directive to achieve greater consistency and clarity. Other key amendments sought to:

- clarify that parental leave is an individual right of every parent;

- provide a definition of "professional promotion" so that the concept cannot be abused to avoid equal opportunities requirements;

- ensure that any less favourable treatment of a woman who is pregnant or on maternity leave is also deemed to be discriminatory;

- require Member States to promote dialogue at the level of the social partners to promote flexible working arrangements with the aim of facilitating the reconciliation of work and private life;

- ensure that Member States conduct awareness campaigns for employers and for the public in general on equal opportunities issues;

- enable Member States to introduce or maintain provisions which ensure a higher level of protection in the area of equal treatment.

Pending the opinion of the European Parliament, the Council endorsed a general approach to the proposed Directive

The objective of this proposal is to contribute to legal certainty and clarity by bringing together in a single text the main provisions existing in this field, as well as reflecting certain developments arising out of well-established case law of the European Court of Justice.

The proposal aims to merge the following seven existing Directives on the equal treatment of men and women in the field of employment into one single coherent instrument:

- Directive 75/117/EEC on equal pay;

- Directive 76/207/EEC, as amended by Directive 2002/73/EC, on equal treatment as regards access to employment, vocational training and promotion, and working conditions;

- Directive 86/378/EEC, as amended by Directive 96/97/EC, on equal treatment in occupational security schemes;

- Directive 97/80/EC, as amended by Directive 98/52/EC, on the burden of proof in cases of discrimination based on sex.

PURPOSE : to simplify, modernise and improve EU legislation in the field of equal treatment for men and women in employment and occupational matters by creating a new, recast Directive.

PROPOSED ACT : Directive of the European Parliament and of the Council

CONTENT : the principle of equality between men and women can be traced back to an isolated provision in the Treaty of Rome through to the inclusion of equality as a fundamental right in the Treaty of Amsterdam. Since the conclusion of the Treaty of Amsterdam there has been an increase in EU primary legislation relating to equality. Primary, EU legislation has given the EU legislator a specific legal basis from which to work. This development, in turn, has led to a subsequent increase in EU secondary legislation. Further, EU case law on equality between men and women has helped to clarify and develop the interpretation of the principle of equal treatment.

It has, however, become apparent that for the sake of transparency and ease of use, secondary legislation in the field of equality between men and women in the field of employment, needs to be updated and simplified. Such an update would need to take account of EU enlargement, the age of certain Directives (some are twenty years old), ECJ case law and the adoption of other similar EU legislation.

In order to assess the most appropriate way in which to enact the proposed modernisation of EU legislation, Commission opened up an open consultation with interested parties. Having taken their views into account, the Commission concluded that a recast Directive would be the most suitable way in which to proceed. This would offer a unique opportunity for simplification and clarification.

The Commission, therefore, proposes a recast Directive that:

1) Provides a single coherent text on the basis of consolidated Directives.

2) Reflects ECJ case law in this field, thus contributing to legal certainty and clarity.

3) Reflects the application of horizontal provision and the reversal of the burden of proof in cases of discrimination on the grounds of sex to equal pay and occupational social security schemes.

4) Accelerates the implementation of equal treatment.

Practically speaking, the recast Directive takes the form of a single instrument for the sake of reader-friendliness and clarity; it streamlines the implementation of the principle of equal treatment between men and women relating to work and occupation and finally, it improves the EU acquis by integrating ECJ case law into the main body of the text. Lastly, the recast Directive will have five titles. They are: General Provisions: Specific Provisions; Horizontal Provisions; Implementation and Final Provisions. These are sub-divided in various Chapters.

Lastly, there was a need to make some linguistic corrections to the Finnish, Italian, Portuguese and Swedish versions of the texts of the recast Directive in order to ensure consistency with other linguistic versions.

The Commission concludes that recasting existing Directives into one text will help ensure that the principle of equality between men and women in the filed of employment and occupational matters and ensure that they are uniformly and effectively applied across the board.

COMMISSION'S IMPACT ASSESSMENT

For further information concerning the background to this issue, please refer to the summary of the Commission’s initial proposal COM(2004)0279 of 21 April 2004 concerning a Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast version).

1- POLICY OPTIONS AND IMPACTS

The Commission identified three possible policy options. Further possible options were discarded at an early stage.

1.1-Option 1 -Simplification without any modernisation: This consists of a pure codification without any substantial changes, by putting together in two separate legal acts the provisions of two basic Directives with the provisions of their later amendments. It concerns the Directives in the area of access to employment, vocational training and promotion and working conditions and the Directives in the area of equal treatment between men and women in occupational social security. Moreover, a modification of Directive 97/80/EC as amended by Directive 98/52/EC on the burden of proof could be proposed in order to align its provision on the definition of indirect discrimination with the latest definition contained in Directive 2002/73/EC.

1.2- Option 2 - Simplification, modernisation and improvement by amalgamating and amending selected Directives into a new and single recast Directive. This option is a recasting of equal treatment Directives by combining all the Directives implementing the principle of equal pay between men and women within the meaning of Article 141 EC and the Directives on the burden of proof. This would go beyond a merely technical exercise applying the definitions of direct and indirect discrimination as well as harassment and sexual harassment in Directive 2003/73 to all subjects covered by the new Directive.

1.3- Option 3- Simplification modernisation and improvement by adding employment related provisions of the Maternity Directive, Directive 92/85 to policy option 3.2: This would extend option 2 by adding some provisions of Directive 92/85/EEC 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, which do not exclusively relate to health and safety aspects but also concern employment conditions. This new and single recast Directive would then cover all maternity related employment rights, like the prohibition of dismissal, maintenance of payment and/or entitlement to an adequate allowance, night work, maternity leave, time off for ante-natal examinations.

1.4- Discarded options: At an early stage, the possibility of including other Directives, such as the Parental Leave Directive and the Directive dealing with equal treatment for the self-employed and their assisting spouses, in the recasting exercise were discarded either because of the incompatibility of their legal base or their limited practical impact.

CONCLUSION : By providing for a more easily accessible and clearer legal text, up to date with case law and free of contradicting definitions, the Commission considers that Option 2 would contribute efficiently to the need of improving the position of women in the labour market.

IMPACTS

Option 1, being a pure codification of existing legislation, would be no more than a technical exercise without adding anything new to the existing Community acquis. Since this would not lead to the creation of any new rights and obligations on Community level with the effect of Member States having to adapt their national legislation accordingly, there would be no socio-economic impact at all, because the legal situation at both levels would remain materially unchanged.

Legally speaking, the main consequence of Option 2 would be the extension of the new provisions of Directive 2002/73 on the newly integrated Directives on equal pay, occupational schemes and the burden of proof. Directive 2002/73/EC is to be implemented by 5 October 2005 and it is only within 3 years of that date, that the Commission will draw up a report for the European Parliament and the Council on its application and be able to evaluate its effects. There is a new expected impact under the envisaged changes in option 2 as, broadly speaking, by leaving Directive 2002/73 untouched without introducing new policies, it will only add to more clarity, but it will not pose an additional financial burden on employers.

However, even without adding new policies, this rather technical exercise as such will have some effect, simply because innovative provisions of Directive 2002/73 would also cover also Directive 75/117 on equal pay, the Directives on occupational social security and Directive 97/80 on the reversal of the burden of proof, in a more visible way than it is the case now. These innovative changes would be:

- Equality bodies, to be installed under Art. 8a of Directive 2002/73, will have more additional responsibilities with regard to occupational schemes. With regard to pay they have already competencies under Art. 3 of the Directive. The overall new impact from clarifying equality body's responsibility to equal pay and in particular to occupational schemes, would be little, first because they already have to exist under present law and also because their responsibilities do not include any hard core competencies. With regard to rights under occupational schemes however, through representative analysis and documentation, eventual inequalities might appear more clearly.

- The recommendation to set up equality plans under Art. 8b of Directive 2002/73 would be extended to occupational schemes. Given that equality plans are not compulsory under the Directive and have the quality of recommendations, their extension to occupational social security would not have an economic effect in the Member States.

- Sanctions under Art.6 of Directive 2002/73 would apply to all aspects of the right to equal pay, including discrimination in occupational pension schemes. This is no material change in law, but a clarification. Therefore, the legal consequence will be that remedies for unequal pay will get an independent basis in secondary Community law. This is, however, no new impact of the recasting but rather an impact of the already existing Directive 2002/73.

- NGOs’ right to bring a complaint before the courts on behalf of employees would be extended to all equal pay related questions including occupational schemes. The recasting would allow these organisations to also cover cases of discrimination under occupational schemes. With respect to occupational schemes and pay, there would again be no new legal impact beyond the one under Directive 2002/73, because these organisations will already be in charge of rights from occupational schemes under the aspect of pay. An impact might, however, come from the fact of clarity and greater visibility of pay and rights from occupational schemes falling within the competence of supporting NGOs.

- The rules on the burden of proof would be extended to occupational schemes but in spite of legislative changes in some Member States, little or no new socio-economic impact is to be expected.

- Definitions would be harmonised.

The socio-economic impact for Option 3 would be the same as the impact described for Option 2, but it was felt that the integration of employment related maternity rights in the new recast Directive might cause some confusion, since other maternity rights will remain in a separate legislative text.

2- FOLLOW-UP

The Member States will send the Commission the text of transposing provisions and a concordance table reflecting the correlation between those provisions and the Directive. In transposing acts, they will make reference to this Directive on the occasion of their official publication. Within 3 years of the entry into force of the Directive, each Member States will provide the Commission with all the necessary information to draw up a report to the European Parliament and the Council on the Directive’s application.

PURPOSE : to simplify, modernise and improve EU legislation in the field of equal treatment for men and women in employment and occupational matters by creating a new, recast Directive.

PROPOSED ACT : Directive of the European Parliament and of the Council

CONTENT : the principle of equality between men and women can be traced back to an isolated provision in the Treaty of Rome through to the inclusion of equality as a fundamental right in the Treaty of Amsterdam. Since the conclusion of the Treaty of Amsterdam there has been an increase in EU primary legislation relating to equality. Primary, EU legislation has given the EU legislator a specific legal basis from which to work. This development, in turn, has led to a subsequent increase in EU secondary legislation. Further, EU case law on equality between men and women has helped to clarify and develop the interpretation of the principle of equal treatment.

It has, however, become apparent that for the sake of transparency and ease of use, secondary legislation in the field of equality between men and women in the field of employment, needs to be updated and simplified. Such an update would need to take account of EU enlargement, the age of certain Directives (some are twenty years old), ECJ case law and the adoption of other similar EU legislation.

In order to assess the most appropriate way in which to enact the proposed modernisation of EU legislation, Commission opened up an open consultation with interested parties. Having taken their views into account, the Commission concluded that a recast Directive would be the most suitable way in which to proceed. This would offer a unique opportunity for simplification and clarification.

The Commission, therefore, proposes a recast Directive that:

1) Provides a single coherent text on the basis of consolidated Directives.

2) Reflects ECJ case law in this field, thus contributing to legal certainty and clarity.

3) Reflects the application of horizontal provision and the reversal of the burden of proof in cases of discrimination on the grounds of sex to equal pay and occupational social security schemes.

4) Accelerates the implementation of equal treatment.

Practically speaking, the recast Directive takes the form of a single instrument for the sake of reader-friendliness and clarity; it streamlines the implementation of the principle of equal treatment between men and women relating to work and occupation and finally, it improves the EU acquis by integrating ECJ case law into the main body of the text. Lastly, the recast Directive will have five titles. They are: General Provisions: Specific Provisions; Horizontal Provisions; Implementation and Final Provisions. These are sub-divided in various Chapters.

Lastly, there was a need to make some linguistic corrections to the Finnish, Italian, Portuguese and Swedish versions of the texts of the recast Directive in order to ensure consistency with other linguistic versions.

The Commission concludes that recasting existing Directives into one text will help ensure that the principle of equality between men and women in the filed of employment and occupational matters and ensure that they are uniformly and effectively applied across the board.