Tasa-arvovaltuutettu

Recent developments in community law in the field of gender equality

Annick Masselot
Co-ordinator of the European Commission's Network of Legal expert on the application of Community law on equal treatment between women and men
Centre for the Study of Law and Policy in Europe - UK

Paper prepared for the seminar "Gender Equality in Finland"

Introduction

Gender equality has been one of the most dynamic areas of EC law mostly due to daring interpretation by the European Court of Justice (ECJ) of few legislative measures. Over the recent years, however, a number of legislative initiatives have been undertaken at EU level in the field of sex equality. On the face of it at least, there has been quite a lot of activity, which have lead to some tangible results such as the adoption of binding legal measures. However, all activities in the field of EU gender equality have also lead to elusive outcome as illustrated by the fate of the gender provisions in the draft Constitutional Treaty of the EU. Aside from the set back resulting from the No voting in the French and Dutch referenda, prima facie the state of gender equality in the EU looks rather positive: two directives have been adopted since 2002, a proposal for another directive and proposal for a regulation establishing a European Institute for Gender Equality are presently being discussed by the Community institutions. However, the recent judicial developments show that gender equality is still far from achieved.

1. Directive 2004/113/EC 

Originally, the competence of the EC in the field of gender equality, embodied in Article 119 of the Treaty of Rome (now Article 141 EC after amendments), was exclusively restricted to the scope of employment law and social policy. The introduction of Article 13 EC in the Amsterdam Treaty changed this situation when, for the first time, competence was given to the Community to take appropriate actions to combat discrimination based on sex, (racial or ethnic origin, religion or belief, disability, age or sexual orientation) outside the field of employment.

The Council adopted very quickly two directives based on Article 13 EC. The Race Directive 2000/43/EC prohibits racial discrimination in and outside the workplace and the Framework Directive 2000/78/EC prohibits discrimination on the grounds of religion or belief, disability, age or sexual orientation in the workplace. A Community Action Programme to combat discrimination 2001-2006 was also adopted with the objectives to evaluate the extent of discrimination in the Union and the effectiveness of anti-discrimination measures. The anti-discrimination law on the ground of sex outside the workplace, however, was not adopted until the end of 2004. For some time, because of a hostile political context, it was even doubtful that this measure could ever be adopted. The initial proposal, covering the representation of the sexes in media, taxation and education, had to be narrowed down after it became clear that no consensus (within the Council) could be reached on these matters. Finally, Council Directive 2004/113/EC implementing the principle of equal treatment between women and men in the access to and supply of goods and services (hereafter the Goods and Services Gender Directive) goes beyond the area of employment and professional life but remains tamed by comparison to the Race Directive.

The Gender Directive aims to lay down a framework for combating discrimination of the ground of sex in access to and supply of goods and services, "with a view to putting into effect in the Member States the principle of equal treatment between men and women".

The Gender Directive is based on similar structures as the other Directives which were adopted using Article 13 EC as their legal basis, and bears a particularly strong resemblance to the Race Directive. It is divided into four Chapters respectively addressing general provisions (Chapter I), remedies and enforcement (Chapter II), bodies for the promotion of equal treatment (Chapter III) and final provisions (Chapter IV). Besides their structure, the Race and the Goods and Services Gender Directives share the same definitions of direct and indirect discrimination, and harassment. The Goods and Services Gender Directive further shares with the Race Directive provisions on dialogue with non-governmental organisations and the need to establish bodies for the promotion of equal treatment. Moreover, the Goods and Services Gender Directive has been harmonised with the provisions of the Amended Equal Treatment Directive. For instance, the definition of sexual harassment is similar to that found in the Amended Equal Treatment Directive.

1.2 A limited material scope

Compared to the Race Directive, the Goods and Services Gender Directive's material scope is very limited. Although it extends the obligation of equal treatment between men and women to areas outside the labour market, it only applies to the access and supply of goods and services. Essentially all goods and services outside the workplace, which are not covered by any existing directive, are covered by the Gender Directive. The Directive, however, does not impact on the content of the media or on advertising except for advertising relating to the conditions of access to goods and services. Education, social assistance and fiscal matters are also excluded from the scope of the Directive.

The absence of taxation in the proposal is understandable. Legal tax systems are closely linked to the national sovereignty of a State, which Member States are reluctant to give up. Further, interference with taxation on a European level would be premature as some Member States are still dealing or have only recently dealt with major changes in their tax systems.

The absence of equal treatment between men and women regarding the media and education is less easily acceptable. The refusal/opposition of the media - specifically the German media industry - to include the fundamental right to equal treatment was explained from the fact that in this case equal treatment would clash with the fundamental right to freedom of speech. However, the proposed Directive only aims to regulate minimum conditions and leaves sufficient discretion for the Member States as to how to implement the Directive. Member States would therefore have been able to implement the Directive in consultation with the relevant parties (including the media industry).

Education was excluded solely due to the fact that the competence of the Community in this area is doubtful. The absence of education from the Directive is not only regrettable, it is also likely to have a negative impact on its overall structure. Education is in fact a key element in pursuing gender equality. It may, for example, stimulate boys and girls to either follow traditional career paths or not, thus affecting their future work choices and income potential.

The exclusion of the media and education are very disappointing since the principle of equal treatment in these areas have already been acknowledged by international instruments such as the CEDAW. These provisions should already apply in the Member States which have signed these agreements. It would therefore take little (to no) effort for the Member States if the equal treatment principle for these areas were also to be included in the proposed Directive. 

1.2 The difficult issue of gender equality in insurance

Discrimination outside the labour market is quite likely to occur in the context of access to insurances and financial services. The principle of equal treatment in the insurance sector is found under Article 5(1) of the Gender Directive. It provides that Member States must ensure that the use of sex for the calculation of insurance risks "shall not result in differences in individuals&' premiums and benefits". This provisions concern life insurance, health insurance, motor insurance and private pensions together with annuities.

The Commission argues that sex - as an actuarial factor - cannot be a justified consideration for evaluating the risk of insuring men and women differently. However, it is common practice among insurance companies to divide men and women into different pools in order to determine the insurance risks. The expenditure involved in insuring women, for example, is often considered to be higher because of women's statistically higher life expectancy. The same applies in motor insurance schemes where men are required to pay higher premiums as they are statistically more likely to be involved in serious car accidents than women. Such an approach, however, reinforces gender stereotypes and openly clashes with the fundamental principle of equality. According to this principle, men and women should be treated on the basis of their individual characteristics and irrespective of their gender. As it is the aim of the Gender Directive to safeguard the principle of equality, it is important that such stereotypes are eliminated. The use of sex as a dominant factor in insurance and other related financial services would only emphasise these prejudices.

Two ideas underlie the introduction of the principle of equal treatment in the insurance sector. Firstly, the Commission has emphasised that other factors besides gender can be more accurate to calculate individual premiums. Life style factors such as eating habits, marital status or smoking and the level of income often have a stronger impact on health and life expectancy. These factors are a fortiori more reliable to evaluate insurance risks. In addition, the French and Swedish examples show that the use of uni-sex tables to determine premiums produces greater accuracy in corresponding to the actual risk.

Secondly, governments have been encouraging the use of private pension schemes, now that ageing populations, the increased participation of women in the labour market and the growing mature population often make it difficult for Member States to cope with the financial burdens that derive from statutory pension schemes. By promoting private pension schemes using tax incentives and equivalent measures governments attempt to limit their public expenditure. However, private pensions and annuities, contrary to occupational pension schemes, are calculated differently for women and men as women tend to pay higher premiums due to higher life expectancy. The shift from statutory to private pension schemes affects the application of the principle of equal treatment. The principle is safeguarded in statutory schemes, but not in most private schemes. It seems only reasonable that governments ensure the same basic protection in the private sphere.

Under Article 5(1) of the Goods and Services Gender Directive Member States need to ensure that national practices in the fields of insurance 'will not result' in discriminatory activities. The Council opted for a flexible phrasing of the exclusion of sex-based considerations in the calculation of individual premiums.

The impact of the principle of equality in the insurance sector was also reduced through the opt-out clause contained in Article 5(2) of the Goods and Services Gender Directive. Although the Directive needs to be implemented before 21 December 2007, Article 5(2) gives the Member States the right not to apply the principle of equal treatment between men and women in pooling insurance risks. This derogation, however, is not absolute and can only be exercised if the use of sex as a determining factor is based on relevant actuarial and statistical data. The Member States concerned consequently have the duty to publish and update these data on a regular basis. In addition, they have to review their decision in December 2012 and inform the Commission accordingly. As this is not clearly defined by the Gender Directive, Member States could continue to omit the principle of equal treatment even after 2012. The opt-out clause will undoubtedly impede the swift and efficient implementation of the Gender Directive in the Member States. The lack of a clear limitation in time with respect to the application of the opt-out clause might in fact defeat the entire purpose of the Directive.

Further, as it stands, the opt-out clause does not apply to discriminatory practices in relation to pregnancy and maternity.

1.3 Exceptions

The Gender Directive provides for two exemptions from the application of the principle of equal treatment. Firstly, as in the amended Equal Treatment Directive, the delicate issues of pregnancy and maternity are addressed by the Gender Directive. Article 4(2) provides that the "Directive shall be without prejudice to more favourable provisions concerning the protection of women as regards pregnancy and maternity". I will consider this issue in the next part when I discuss the amended Equal Treatment Directive.

Article 4(5) of the Goods and Services Gender Directive provides for a broad exception to equal treatment "if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving this aim are appropriate and necessary". The general and arguably vague formulation of this provision results in a lack of transparency. From it, individuals will be unable clearly to tell what their rights are and it makes it difficult for the Commission and national authorities to control the implementation of the Directive. Further, it creates the impression that stereotypes should not be challenged. The Commission explained in its impact assessment that this provision would, for instance, cover single-sex sessions in a swimming pool or single-sex private members' clubs. The interpretation of the justification will, however, be left to the ECJ.

1.4 Positive action

By contrast, the concept of positive action under the Goods and Services Gender Directive is not set out as a derogation from the principle of equal treatment. This is important as exceptions to the principle of equality are to be interpreted narrowly. The concept of gender equality goes further than the mere formal prohibition 'not to discriminate'. The Treaty of Amsterdam not only introduced Article 13 EC allowing for gender equality to escape the straight jacket of the workplace, it also formalised the Community's positive obligation to achieve and promote gender equality (I will elaborate on this issue in the next part). In accordance, Article 6 of the Goods and Services Gender Directive also provides that Member States may maintain or adopt specific measures to compensate for disadvantages experienced by either sex "with a view to ensuing full equality in practice between men and women". Positive actions measures adopted under Article 6 of the Gender Directive must be regarded as a means to achieve substantive equality, in the light of Article 141(4) EC and the case law of the ECJ. The concept of gender equality as envisaged in the Goods and Services Gender Directive goes therefore further than just the requirement not to discriminate. It is an instrument for the promotion and achievement of gender equality.

1.5 The link between gender equality and Human rights in Article 13 EC and the Goods and Services Gender Directive

EC sex discrimination law has always been linked to the internal market and economic considerations. The need to regulate competition between Member States sprang the inclusion of the original Article 119 in the Treaty of Rome (now Article 141 EC after amendments) on equal pay. The principle of equal treatment between men and women has however evolved beyond its economic boundaries following some legislative developments but mostly as a result of generous judicial interpretation. While originally regarded as a purely economic instrument, it soon developed into a social objective of the EU and later as a fundamental right.

Article 13 EC gives a clear legal basis for the Community to take further social action beyond the boundaries of the internal market. Thus, the principle of equal treatment is not restricted to the internal market but is a fundamental social right that must be guaranteed in all areas of the Community. In other words, gender equality is not a mere by-product of the internal market, but as a solid Human right that is guaranteed in the daily life of EU citizens. In accordance with its legal basis, the Goods and Services Gender Directive is a clear expression of the idea of a more Human Rights-based European Union.

The social and Human rights emphasis of the principle of gender equality also impacts the notion of citizenship. As gender equality is a clear expression of a more socially 'equipped' Union that aims at eliminating social inequalities in a free and just Community, its concept of citizenship is one of social inclusion, solidarity and European integration. The importance of participation as well as the combined notion of 'European identity' appears to be ever urgent as feelings of indifference and reduced confidence in the EU have recently emerged amongst EU citizens.

The notion of social citizenship is particularly apparent under the Goods and Services Gender Directive as the principle of equality exceeds its economic limitations and provides a basic protection for all its citizens regardless of their social status. Indeed, the protection against discrimination based on sex is not only safeguarded within the areas of free movement and internal market but can also be enforced in areas outside the internal market.

Nevertheless, the Goods and Services Gender Directive retains a strong market flavour and fails to fully pursue an independent anti-discrimination framework. Firstly, the limited material scope of the Directive suggests that fundamental rights can themselves be limited. Secondly, the economic value requirement is arguably at odds with the overall Human Rights element implied in Article 13 EC. Finally, because of the limitations inherent to its legal basis, the Goods and Services Gender Directive can only be interpreted within the powers of the Community. This means that the application of the Goods and Services Gender Directive is restricted to the competences of the Community which are still predominantly economic. Despites its low market profile, the Goods and Services Gender Directive remains therefore tied to an internal market orientation. 

1.6 The question of coherence and hierarchy of equality

The Gender Directive clearly complements the existing legislative framework on anti-discrimination law within the Community. It also furthers the debate on whether it is possible for the Community to establish a coherent framework of anti-discrimination law.

Arguably, however, this coherence has not yet been achieved. A hierarchy still exists between the non-discrimination measures on the "old" grounds and the more recent ones. While Member States have a positive obligation to achieve nationality and gender equality in matters coming under the scope of the labour market, they only have to ensure that their nationals are not discriminated on other grounds such as disability or sexual orientation. In addition, the Gender Directive indicates that a new hierarchy is established amongst the different grounds contains within the Article 13 Directives due to their different scopes. In this new hierarchy the Race Directive with its wide scope takes precedence over the Gender Directive that is limited to the access and supply of goods and services. Arguably, in this context the limited scope of the Goods and Services Gender Directive hampers the far-reaching social objectives of Article 13 EC which are obviously present in the Race Directive. The scope of the Race Directive is wider as it enables the Community to provide more fundamental safeguards in relation to equal treatment. The human rights emphasis can therefore be said to be more pronounced in the Race Directive than in the proposed Goods and Services Gender Directive.

2. The Amended Equal Treatment Directive

On 23 September 2002, after more than two years of discussion, the European Parliament and the Council of the European Union (EU) adopted Directive 2002/73 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 (hereafter the amended Equal Treatment Directive or the amended Directive). This Directive amends Directive 76/207 (the Equal Treatment Directive) and had to be implemented by 5 October 2005.

Directive 2002/73 introduces some substantial and procedural amendments to the old Equal Treatment Directive. In particular, the amended Directive clarifies a number of definitions (e.g. direct/indirect discrimination and harassment) that, in the past, had been addressed by the E.C.J. and by soft law and, recently but with some variations, by the 'Article 13 Directives' and the Burden of Proof Directive. The amended Directive also revisits some 'troubled' concepts (such as pregnancy/maternity rights and positive action) with more or less success and introduces instruments for better judicial protection.

2.1 Direct and indirect discrimination

The principle of equal treatment is defined as the absence of  "discrimination on grounds of sex either directly or indirectly by reference in particular to marital or family status". The amended Equal Treatment Directive provides definitions for direct and indirect discrimination as well as harassment and sexual harassment.

Direct discrimination occurs where "one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation". First, a comparable situation must be established. This exercise is not self-evident because direct discrimination is less likely to be the result of a formal difference in treatment, and more likely that of differential treatment justified by accepted and legitimised stereotypes. Secondly, a comparator must be found. The ECJ had already permitted comparisons to be made with contemporary or past comparators, such as those between present or former employees of a firm. Now, the new Directive authorises the use of present, past and hypothetical comparators. This development should allow Member States to tackle more efficiently situations in which it is difficult to find a comparator in markets tainted by professional segregation.

However, the definition omits another aspect of direct discrimination: the same treatment of persons who, because of their sex, find themselves in different situations.

Indirect discrimination occurs where "an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex". This definition had to be reconciled with other, less generous EU legislation in this area. The definition of indirect discrimination provided by the Burden of Proof Directive does not allow for a potential negative impact. The new definition is, however, consistent with the jurisprudence on discrimination on the grounds of nationality, since it does not require proof that a "considerably smaller percentage" of one sex is affected. As we will see later, the definition in the proposed recast Directive does use the same definition as that of the amended Equal Treatment Directive.

Finally, indirect discrimination may be "objectively justified by a legitimate aim" that must be "appropriate and necessary". By contrast, direct discrimination can never be objectively justified.

2.2 Harassment and sexual harassment

The concept of harassment, first introduced in European law by the 'Article 13 Directives', includes the American notion of "hostile environment".

Article 2(2) of the amended Equal Treatment Directive provides that "there is harassment where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment". The same formula is applied to sexual harassment with the addition that the prohibited conduct is of "sexual nature". In practice, however, it is not always easy to differentiate between sexual harassment and general harassment related to sex. For example, when an employer requests a sexual favour from an office female employee under the threat of dismissal, it is sexual harassment. When an employer orders an office female employee to wash the office's coffee cups, clean the floor, water the plants and polish his shoes while never treating the male employees this way, it might be construed as general harassment tainted by the sex of the worker. Nevertheless, harassment, sexual harassment and victimisation are all considered to be sex discrimination prohibited by the Directive. This means that the rules of evidence as provided by the Burden of Proof Directive apply to situations of sexual harassment.

Furthermore, Article 2(4) prohibits the "instruction to discriminate against persons on grounds of sex" which covers, for example, the situation where an employer requests a recruitment agency to employ a person of a specific sex. Finally, the amended Article 2(5) provides that "Member States shall encourage, in accordance with national law, collective agreements or practice, employers and those responsible for access to vocational training to take measures to prevent all forms of discrimination on grounds of sex, in particular harassment and sexual harassment at the workplace". This provision places a relatively light obligation on the shoulder of the employers and social partners.

2.3 The 'exceptions' to the principle of equality

The Directive of 1976 provided that the principle of equal treatment could not be invoked in three particular circumstances: (1) when the sex of the worker constituted a genuine occupational characteristic; (2) for the protection of pregnancy and maternity rights; and (3), for the adoption of positive actions. Articles 2(6) to 2(8) of the Amended Equal Treatment Directive address these issues within the same framework. Indeed, the three specific circumstances in question are still presented as exceptions to the principle of equality. This serves as a constant source of problems since exceptions to fundamental rights are to be interpreted strictly and it is to be regretted that the European legislature has missed a golden opportunity to develop a more progressive approach to this matter.

2.3.1 Sex as a genuine occupational factor

Article 2(6) of the amended Equal Treatment Directive authorises Member States to exclude the principle of equal treatment "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 and determining occupational requirement". The amended provision appears stricter than the old because it mentions an occupational requirement that must be determinant. This means that judicial interpretation of what constitutes a genuine occupational requirement remains crucial. By way of clarification, the amended Directive refers in its preamble (point 11) to the rather unsatisfactory case law of the ECJ in the area. Without the existence of the 'stand-still' clause introduced in the new Article 8e, one might have feared that the general principle of equality could easily sink.

2.3.2 Pregnancy and maternity

The amended Equal Treatment Directive also attempts to regulate - more comprehensively than its predecessor - the delicate issue of pregnancy and maternity. However, the extent to which it achieves this is open to question. First and foremost, the amended Directive fails to address the delicate relationship between pregnancy/maternity and equal treatment. The cryptic formula employed by Directive 76/207 ("this Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity") which led to confusion in the past, rather than being amended or clarified, has been re-employed by the amended Article 2(7). This formula reinforces the idea that pregnancy and maternity rights are exceptions to, rather than a condition and part of, the concept of equality. Once more, the European legislature has missed an opportunity to define and balance the needs of the market on the one hand, with gender equality and human rights on the other.

Despite the disappointing start, however, new Article 2(7) goes further to provide for the right of a woman on maternity leave to return to her job or to an equivalent post after the end of her maternity leave. This provision is particularly welcome since under the old Equal Treatment Directive the right to return to the same or similar work was guaranteed only after parental leave and not after maternity leave. The lack of such provision caused a plethora of litigation in some Member States.

Furthermore, the amended Equal Treatment Directive comes fairly close to fully implementing the Dekker principle in stating that less favourable treatment on the grounds of pregnancy or maternity is to be regarded as sex discrimination. However, unlike Dekker, the new Article 2(7) does not state that discrimination on the grounds of pregnancy and maternity is direct discrimination. Potentially, and rather dangerously, this could offer support to the argument that unfavourable treatment of an employee on the grounds of her pregnancy or maternity is indirect discrimination and, therefore, objectively justifiable.

In addition to the provisions addressing pregnancy and maternity, Article 2(7) introduces the wider concept of reconciliation between work and family life into the Equal Treatment Directive. In fact, the rather confusing last paragraph of Article 2(7) states that the Directive is without prejudice to the application of the right to parental leave. This is only logical in so far as the Parental Leave Directive guarantees leave for parents of both sexes. However, Article 2(7) goes further when it states that "it is also without prejudice to the right of Member States to recognise distinct rights to paternity and/or adoption leave". Nevertheless, the same level of provision as applies to maternity leave must be extended to paternity and adoption leaves, provided that Member States have already introduced such rules into national law.

2.3.3 Positive actions

Positive actions measures go further than prohibiting sex discrimination because they aim to promote equality. For a long time, the concept of positive action remained dormant in the EC. The ECJ has recently developed a relatively extensive case law under the restrictive provisions of the old Equal Treatment Directive. The Court has gradually moved from strict interpretation to an application of the proportionality principle.

In order to ensure full equality in practice between men and women in working life, Article 141(4), introduced by the Treaty of Amsterdam, allows Member States to maintain or adopt measures that provide specific advantages so it is easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Under Articles 2 and 3(2) EC gender equality "constitutes a task, an aim and a horizontal objective of the EU in all its activities" and not just a negative obligation not to discriminate on the grounds of sex. The so-called concept of "gender mainstreaming" enshrined in Article 3(2) EC together with positive actions under Article 141(4) EC now require that the elimination of gender inequalities and the promotion of gender equality be achieved in all fields of EC law.

Thus, Article 2(8) of the amended Directive confirms that Member States can maintain or adopt measures "with a view to ensuring full equality in practice between men and women". Women are no longer the sole benefactors of positive actions even if the preamble of the new Directive (point 14) points out that "given the current situation", Member States should proceed to ensure the improvement of women's working lives.

Member States are to report the measures adopted under this provision to the European Commission every four years and on the basis of this data the Commission will prepare a comparative study. However, the main problem which remains is that, once more, this provision does not create any obligation upon Member States. Consequently, states will not breach E.C. law for failure to implement positive actions even when their necessity is assured.

2.4 Better access to justice

Arguably, the most important changes brought about by Directive 2002/73 to the Equal Treatment Directive are procedural. Member States must ensure that judicial and/or administrative procedures (including conciliation procedures) for the enforcement of equal treatment are available to all persons who consider themselves discriminated against on the grounds of sex (new Article 6(1)). Member States have the obligation to introduce into their national legal systems measures to ensure real and effective compensation or reparation. Compensation and reparation measures must be dissuasive and proportionate to the damage suffered (new Article 6(2)). Furthermore, in accordance with ECJ case law, compensation or reparation may not be restricted by the fixing of a prior upper limit (new Article 6(2)). Finally, associations, organisations or other legal entities that have a legitimate interest in equal treatment between men and women may engage, either on behalf of or in support of a complainant, in any judicial and/or administrative procedure (new Article 6(3)) and Member States must protect employees or those who have helped to enforce compliance with the principle of equal treatment from victimisation (new Article 7)

Under new Article 8a, Member States are under an obligation to create bodies for the promotion, analysis, monitoring and support of equal treatment. The aim of these bodies is to facilitate the application of the principle of equal treatment by providing independent assistance to victims of discrimination in pursuing their complaints; conducting independent surveys concerning discrimination; and publishing independent reports and making recommendations on any issue relating to such discrimination. Member States are also requested to take measures to promote social dialogue between the social partners 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 (new Article 8b). In this context, employers should be encouraged to apply equal treatment and to provide, at appropriate and regular intervals, employees with appropriate information on equal treatment for men and women in the undertaking (new Article 8b(3-4)). Furthermore, Member States are encouraged to have dialogue with non-governmental organisations that have a legitimate interest in contributing to the fight against discrimination on the grounds of sex with a view to promoting the principle of equal treatment (new Article 8c). Finally, the Directive now provides for better access to courts and remedies, and a number of preventive measures against discriminatory situations and generally is welcome in so far as it reinforces the legal protection against victims of discrimination.

Conclusion

Undoubtedly, the new Equal Treatment Directive is progressive when compared to the Directive of 1976. However, an assessment of its provisions reveals some serious shortcomings and a host of missed opportunities. The new Directive generally reflects the spirit of the ECJ's jurisprudence without any originality or pro-active measures meaning that the European legislature has once again left the initiative to the Court in this area.

The Community is presently working on recasting the equality directives in a single text and it was hoped that this exercise would provide the legislature with another chance to establish gender equality as a strong fundamental principle of EC law. However, as we will see, the proposed recast Directive is quite disappointing.

3. The Proposed Recast Directive

3.1 A new legislative process

The recast (or refonte) project was introduced as part of the European Commission's better legislation programme. The programme was introduce in 2003 and aim at overcoming the difficulties create by the plurality and complexity of European legislation, and enacting transparent, visible and user friendly legislation. In this context recast is defined as "a new legal act which incorporates in a single text both the amendments it makes to the previous act and the provisions of that previous act which remain unchanged, the new legal act replacing and repealing the previous act. The new legal act therefore amounts to a codification of the pre-existing basic act and all its amendments, but at the same time it provides the possibility for changes to the existing law, which is not possible in the case of codification".

The recast, therefore, is not merely a compilation or a codification of existing directives. It is rather a simplification and a "modernisation" of the existing legislation. In this specific case its aim is to simplify and improve "the legislative environment [as] to ensure, in the interest of men and women, that Community legislation is more attuned to the problem posed, to the challenge of enlargement and to technical and local conditions. This aim is relevant in the case of equality legislation as individual men and women are directly concerned and need to have their individual rights clearly set out". Furthermore, the recast should also integrate all areas of gender equality.

In addition to these aims, the EC Commission should also achieve a "sustainable legislative development". In other words, the Commission must abstain from creating unnecessary legislation and must justify the adoption of any further legislation.

In other words the Commission is under the obligation to draft better and simpler legislation (hence the recast) but at the same time, it must justify its working method. For this purpose the Commission is required to conduct an impact assessment of the existing equality directives as well as an open consultation on the recast project. The impact assessment is a report which covers economic and legal aspects of the existing Directives as well as the foreseeable shape of future legislation. It identifies the positive and negative impacts of proposed policy actions and enabling trade-offs and synergies. It aims at improving the quality and coherence of the EU measures and ultimately to contribute to a more coherent implementation of the European Strategy for Sustainable Development.

Being a novel requirement, the drafting of the Legal Impact Assessment has encountered difficulties, namely the short time limit (three to six months) and the methodology. In particular the methodology used is not apt to produce the best result. In fact the Commission's guidelines are generic and addressed to legislation reform in any area. No formal or specific rules were designed to assess the specific impact of gender equality in the Member States. The impact assessment intends to quantify the benefit of a given legislation. How could one quantify the effect of gender equality law? Further, there is not agreement on basic value. In other words, equality was not set as a social good and could therefore be questioned as a value. Finally, the impact assessment could arguably be used as an argument for deregulation in the field of equality.

3.2 The scope of the proposal

From a substantive point of view the problem faced by the EC Commission was to decide whether all and if not, which of the equality directives, were to be included in the recast.

The Commission is very clear that the recasting of the gender equality directives is not merely a compilation or a codification of existing directives. It should rather be a simplification and a "modernisation" of the existing legislation. In this specific case its aim is to simplify and improve "the legislative environment [as] to ensure, in the interest of men and women, that Community legislation is more attuned to the problem posed, to the challenge of enlargement and to technical and local conditions. This aim is relevant in the case of equality legislation as individual men and women are directly concerned and need to have their individual rights clearly set out".

It seems clear therefore that the recast should integrate all areas of gender equality. However, the Commission decided not to include all existing gender equality directives in the recast. It was decided that only following directives would be brought together in one single text: Directive 75/117 (equal pay), Directive 76/207 (equal treatment of men and women at work; as amended by Directive 2002/73), Directive 86/378 (occupational social security, as amended by Directive 96/97) and Directive 97/80 (burden of proof, as amended by Directive 98/52).

The Pregnant Workers Directive and the Parental Leave Directive are excluded from the recast. The main reason given by the Commission is that these directives do not have the same legal base as the Equal Treatment, Equal Pay and Burden of Proof Directives. Indeed the Pregnant Workers Directive was adopted on the basis of health and safety concerns and the Parental Leave Directive resulted from a social partners' agreement. Arguably, the exclusion of these two directives from the recast sends the message that pregnancy and maternity rights are excluded from the principle of gender equality rather than being integrated into it. This can only entrench the idea that pregnancy and maternity provisions constitute exceptions which should be addressed separately from the issue of gender equality. The same can be said about the reconciliation between work and family life. Ultimately this would clash with the EU commitment to furthering all aspects of equal opportunities. Furthermore the exclusion of the Pregnant Workers and the Parental Leave Directive create also a paradox. In fact the relevant rights are addressed by the amended Equal Treatment Directive which is part of the recast project.

The Equal Treatment Directive for Self-employed and their Assisting Spouse is also excluded from the refonte on the basis that it "concerns a specific category of persons and therefore would require a more specific approach". Finally agreement the Statutory Social Security Directive and the Occupational Social Security Directive have also been excluded.

The limited scope of the recast has lead to a severely limited reform. The drafting process has been even more complex than prior to the adoption of the better legislation programme. The assessment of this legislative project is disappointing from a formal and a substantial point of view.

Part 2