All forms of discrimination
The changes also embrace positive discrimination and equal value. The package adds up to a welcome move forward by the European Union in this area.
In response to the long-standing criticism that the Treaty failed to address the growing problems of different forms of discrimination, a new Article 6a has been introduced in the EC Treaty which widens the defined areas of discrimination:
"Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation".
Reinforcing the focus on sex discrimination
Specifcally regarding sex discrimination, a supplement has been introduced in Article 2 of the Treaty:
"The Community shall...promote...a high level of employment and social protection, equality between men and women, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States".
All these were already present in Article 2 (as amended by the Maastricht Treaty), save for the reference to equality between men and women. This addition may be significant, when coupled with the expanded new Article 119 allowing for positive action.
Further, there is a supplement to Article 3 of the EC Treaty in the form of a new paragraph:
"In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women".
This is again a reinforcement of positive action, but specifically recognising the policy of "mainstreaming", which means sex equality is not seen as a separate issue, but integrated into all policy dimensions of the EU.
Equal value
A new Article 119 is based on the Agreement, Article 6, but paragraph 1 changes Article 6, and thereby also Article 119 of the EC Treaty, to include "equal value":
"Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied".
This confirms the present position, since the European Court of Justice, by holding that the Equal Pay Directive 75/117 "in no way alters the content or scope" of Article 119, effectively extended it to include equal value (Jenkins v Kingsgate, Case 96/80 [1981] ECR 911).
Mandate for new equality measures
The Amsterdam Treaty inserted a wholly new paragraph into Article 119:
"3. The Council, acting in accordance with the procedure referred to in Article 189b, 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."
Previously, such measures as the Equal Pay Directive 75/117 had to be adopted under Article 100 of the Treaty, which authorised "directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market". In future, Directives will no longer have to be tied to "market legitimacy". It is replaced by a provision allowing for the proposal of directives with the explicit mandate of ensuring the application of the EC law on sex equality. The procedure is that of co-decision (Article 189b), giving the European Parliament a greater voice in determining sex equality policies.
Positive action
A second new paragraph inserted by the Amsterdam Treaty is a revised and expanded version of Article 6(3) of the Maastricht Agreement: (new wording underlined)
"4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex [formerly: women] to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers".
This new provision seems to go beyond its predecessor authorising positive action: the Equal Treatment Directive 76/207, Article 2(4):
"This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect womenÕs opportunities in the areas referred to in Article 1(1)".
More important, it is now a Treaty provision, not merely a Directive. It may be particularly timely in light of recent decisions of the European Court of Justice in Kalanke and Marshall, widely interpreted as hostile to positive action measures.
First fruits: a new directive
The arrival of the new Labour government has finally allowed for the passage of the proposed directive on the reversal of the burden of proof in sex discrimination cases. This aims to ensure that measures taken by Member States under the principle of equal treatment are made more effective; particularly, to enable victims of discrimination to assert their rights through tribunals and the courts.
In the presence of the new UK representative, on 27 June 1997 the Council of Social Affairs Ministers reached political agreement on the directive. It is subject to the co-operation procedure and has still to be reviewed by the European Parliament. When approved, it will enter into force on 1 January 2001. It states:
"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 by failure to apply to them the principle of equal treatment establish, before a court or other competent body, facts from which it can be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no contravention of the principle of equal treatment".
This reinforces the position in UK law, which allows the court, when there is a prima facie case of discrimination taking place, to draw an inference of discrimination unless the respondent can provide another explanation (North West Thames Regional Health Authority v Noone [1988] IRLR 195 (CA); King v Great Britain-China Centre [1991] IRIR 513 (CA)).
The directive applies to the situations envisaged by Article 119 (equal pay) and those under the directives on equal treatment, access to employment, health and safety of pregnant workers and parental leave. But a statement from Commissioner Padraig Flynn regretted that social security cases were excluded from the definition of indirect discrimination. The scope of the directive will be reviewed two years after it comes into force.