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Equality between men and women

Equality between women and men is one of the objectives of the European Union. Over time, legislation, jurisprudence and modifications to the Treaties have contributed to reinforce this principle and its implementation in the EU.

LEGAL BASIS

Since 1957 and the Rome Treaty, the principle that men and women should receive equal pay for equal work has been enshrined in the EC Treaties. However, the first directives implementing this principle were not adopted on this basis but on the basis of Article 308 (supplementary powers), Article 94 (the approximation of laws) and Article 137 (workers’ health and safety).

The Treaty of Amsterdam made the principle of equality between men and women an objective and a fundamental Community principle (Article 2). Article 3(2) also gives the Community the task of integrating equality between men and women into all its activities (also known as ‘gender mainstreaming’). The Treaty of Amsterdam also expanded the legal basis for promoting equality between men and women and introduced new elements of major importance. The new Article 13 makes provision for combating all forms of discrimination and Articles 137 and 141 allow the EU to act not only in the area of equal pay but also in the wider area of equal opportunities and treatment in matters of employment and occupation. Within this framework, Article 141 authorises positive discrimination in favour of women.

The Treaty of Lisbon reinforces the principle of equality between women and men by including it in the values and objectives of the Union (Articles 2 and 3(3) of the Treaty on European Union) and by providing for gender mainstreaming in all EU policies (Article 8 of the Treaty on the Functioning of the European Union).

OBJECTIVES

To ensure equal opportunities and treatment for men and women through legislation, mainstreaming and positive actions.

ACHIEVEMENTS

A. The first directives on equality

From the mid-1970s, the European Community adopted legislation aimed at ensuring equality between men and women in the workplace:

— approximation of laws in the Member States relating to the application of the principle of equal pay for men and women(Directive 75/117/EEC of 10 February 1975);

— implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions (Directive 76/207/EEC of 9 February 1976);

— progressive implementation of the principle of equal treatment for men and women in matters of social security (Directive 79/7/EEC of 19 December 1978);

— implementation of the principle of equal treatment for men and women in occupational social security schemes (Directive 86/378/EEC of 24 July 1986, as amended by Directive 96/97/EEC of 20 December 1996);

— application of the principle of equal treatment between men and women engaged in an activity including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood (Directive 86/613/EEC of 11 December 1986);

— introduction of measures to improve the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (Directive 92/85/EEC of 19 October 1992).

B. Progress in case-law of the Court of Justice of the European Communities (CJ)

The CJ has played an important role in the promotion of equality for men and women. The most notable judgments are listed below.

Defrenne II judgment of 8 April 1976 (Case 43/75): The Court recognised the direct effect of the principle of equal pay for men and women and ruled that that principle not only applied to the action of public authorities but also extended to all agreements which are intended to regulate paid labour collectively.

Bilka judgment of 13 May 1986 (Case 170/84): The Court felt that a measure excluding part-time employees from an occupational pension scheme constituted ‘indirect discrimination’ and was therefore contrary to Article 119 if it affected a far greater number of women than men, unless it could be shown that the exclusion was based on objectively justified factors unrelated to any discrimination on grounds of sex.

Barber judgment of 17 May 1990 (Case 262/88): The Court decided that all forms of occupational pension constituted pay for the purposes of Article 119 and the principle of equal treatment therefore applied to them. The Court ruled that men should be able to exercise their pension rights or survivor’s pension rights at the same age as their female colleagues.

Marschall judgment of 11 November 1997 (Case C-409/95): The Court declared that a national rule which, in a case where there were fewer women than men in a sector, required that priority be given to the promotion of female candidates (‘positive discrimination’) was not precluded by Community legislation, provided that that advantage were not automatic and that male applicants were guaranteed consideration and not excluded a priori from applying.

C. Recent developments

The European Union’s most recent actions in the field of equality between men and women are indicated below.

1. The financial framework

a. The Progress programme (2007–13)

The EU actions in the field of gender equality are funded under the Community programme for employment and social solidarity (Progress). Gender equality is one of the five fields of activity of this programme. A minimum of 12 % of its almost EUR 658 million budget will be devoted to actions in this field over the period 2007–13.

b. The Daphne III programme (2007–13)

The Daphne programme is a Community programme aimed to prevent and combat violence against children, young people and women and to protect victims and groups at risk. It follows on from the Daphne (2000–03) and Daphne II (2004–06) programmes and has a budget of EUR 116.85 million for the period 2007–13.

2. Legislation recently adopted

— Directive 2002/73/EC of 23 September 2002 amending Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions: This directive provides a Community definition of direct and indirect discrimination, harassment and sexual harassment. It also encourages employers to take preventive measures to combat sexual harassment, reinforces the sanctions for discrimination and provides for the setting up within the Member States of bodies responsible for promoting equal treatment between women and men.

— Regulation (EC) No 806/2004 of 21 April 2004 provides for gender mainstreaming in EU cooperation and development policy as a whole and the adoption of specific measures to improve the situation of women.

— Directive 2004/113/EC of 13 December 2004 provides for implementing the principle of equal treatment between women and men in the access to and supply of goods and services.

Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast): In order to contribute to legal certainty and clarity in the implementation of the principle of equal treatment, this directive merges:

• Directive 75/117/EEC on equal pay,

• Directive 76/207/EEC, as amended by Directive 2002/73/EC,

• Directive 86/378/EEC, as amended by Directive 96/97/EC, on equal treatment in social security schemes, and

• Directive 97/80/EC on the burden of proof in cases of discrimination based on sex.

3. A roadmap for equality between women and men (2006–10)

In March 2006, the Commission presented its ‘Roadmap for equality between women and men’ (COM(2006) 92). It builds on the experience of the framework strategy for equality between women and men for the period 2001–05 and outlines six priority areas for EU action on gender equality for the period 2006–10: equal economic independence for women and men; reconciliation of private and professional life; equal representation in decision-making; eradication of all forms of gender-based violence; elimination of gender stereotypes; and promotion of gender equality in external and development policies. The roadmap represents the Commission’s commitment in the field of equal opportunities between women and men.

4. The 2006 European Pact for Gender Equality

The European Pact for Gender Equality, initiated by the Czech, Danish, Spanish, French, Finnish and Swedish governments was adopted by the spring European Council in March 2006. Its main purpose is to encourage actions by the Member States and the EU to enhance women’s participation in the labour market, to improve work–life balance for women and men, and to promote gender mainstreaming. The Pact builds on already existing objectives, targets and instruments within the Lisbon process and reinforces the implementation of national reform programmes (*4.8.3) to raise the employment rate of women.

5. The European Institute for Gender Equality

The European Parliament and the Council established in December 2006 a European Institute for Gender Equality with the overall objective to contribute to and strengthen the promotion of gender equality, including gender mainstreaming in all Community and national policies. It will also fight against discrimination based on sex and raise awareness of gender equality by providing technical assistance to the Community institutions by collecting, analysing and disseminating data and methodological tools.

ROLE OF THE EUROPEAN PARLIAMENT

The European Parliament has played a significant part in supporting the equal opportunities policy, particularly since it established its Committee on Women’s Rights and Gender Equality in July 1984.

Parliament’s action has been facilitated by the extension of the application of the co-decision procedure in the following areas:

— measures to promote equality between men and women with regard to labour market opportunities and treatment at work (Article 137 of the EC Treaty, as amended by the Treaty of Amsterdam);

— measures aimed at applying the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Article 141(3) of the EC Treaty, as amended by the Treaty of Amsterdam); the Parliament thus played a significant role in the adoption of Directive 2002/73/EC of 23 September 2002 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions;

— Community incentive measures to support actions taken by the Member States to combat discrimination (Article 13(2) of the EC Treaty, as amended by the Treaty of Nice)

The Treaty of Lisbon extends further the application of co-decision to the adoption of measures in combating trafficking in women and children.

In addition, Parliament contributes not only to the overall policy development on equality between women and men (for example by adopting resolutions on the report the Commission presents each year to the spring European Council on developments in gender equality in the EU), but also to the development of Community policy in more specific areas.

The European Parliament has notably focused, through its own-initiative reports, which allow it to draw the attention of other institutions to specific problems, on the following issues over recent years:

— the fight against trafficking in women (see the resolution of 17 January 2006);

— the fight against violence against women (see the resolution of 2 February 2006); and

— gender equality in external relations (see for example the resolution of 1 June 2006 on the situation of women in armed conflicts or the resolution of 16 November 2006 on women in international politics)

Through its Committee on Women’s Rights and Gender Equality, the European Parliament has also developed dialogue and cooperation with the national parliaments on equal opportunities within the network of parliamentary committees for equal opportunities for women and men in the European Union (NCEO) since it was set up in 1997.

Hélène Calers

July 2008