Recent developments in community law in the field of gender
equality, part 2
Annick Masselot
4. European Institute for Gender Equality
4.1 The proposal for a European Institute for Gender Equality
On 8 March 2005, the Commission submitted its proposal for Proposal for a Regulation of the European Parliament and of the Council establishing a European Institute for Gender Equality.
The Institute would have two main functions; (i) to give technical support to the Community institutions, in particular the Commission, and the authorities of the Member States in the fight against discrimination based on sex and the promotion of gender equality and (ii) to raise the profile of such issues among EU citizens.
The Institute tasks would include developing methods to improve collecting, analysing and disseminating relevant objective, reliable and comparable information on gender equality; helping to get gender equality integrated in all Community policies; conducting surveys of gender equality; supporting research; organising European conferences, campaigns and meetings, creating a documentation centre addressed to the stakeholders and the public at large.
The Institute's total budget between 2007 and 2013 would be ?52.5 million. It would employ 30 staff by 2012. The Commission proposed that the Institute should have a Management Board; six of its members would be appointed by the Council and six by the Commission; the Commission would also appoint three non-voting members (one from an appropriate NGO, one from an employers' organisation, and one from an employees' organisation).
The Institute' work programme should be aligned with the Commission's. The Institute should avoid duplicating the work of other Community agencies, Member States, international organisations and others, but it should cooperate with them.
Article 141(3) and the new Article 13(2) EC Treaty combined
constitute the legal basis for the proposal. Both provisions
provide for co-decision, and for qualified majority voting in the
Council. Prior to the amendment made at Nice, Article 13 EC, only
provided for consultation of the European Parliament (EP). The
decision making process can be traced at
link
On 2 June 2005, an orientation debate was held in the Employment, Social Policy, Health and Consumer Affairs Council. The Council supports the proposal - although the UK questioned the appropriateness of Article 13 as a proper legal basis, and interested delegations have submitted their applications to host the seat of the new Institute. The draft Regulation is currently with the EP for 1st reading, the Committee on Women's rights and Gender equality is the lead Committee (rapporteur Sartori Amalia). Two hearings have been held in the EP, but no report is available to date. http://www.europarl.eu.int/hearings/default_en.htm. The Economic and Social Committee has issued its opinion on 28 September, generally supportive of the proposal.
The proposal for a European Institute for Gender Equality is not
new. It was proposed, for example, by the Swedish Minister for
Equality in 1999. The European Council of December 2000 invited the
Commission to arrange a feasibility study of the idea, which was
completed in 2002. The European Parliament has been calling for the
establishment of the Institute for more than two years. In June
2004, the European Council expressed support for the creation of
the Institute and asked the Commission to make a proposal for that
purpose. The annex to the document draws on the feasibility study
of 2002. It elaborates the Commission's reasons for proposing the
creation of the Institute. It also discusses and rejects two
alternatives: either to take no action or to extend the
responsibilities of an existing Community agency. The Community
framework strategy on gender equality 2001-2005 also identified the
collection, analysis and dissemination of objective, reliable and
comparable information and data on equality between men and women,
the development of appropriate tools for the integration of the
gender dimension in all policy areas, the promotion of dialogue
among stakeholders and the raising of awareness among EU citizens
as essential to enable the Community to effectively promote gender
equality policy, in an enlarged Union. The supporting programme
(Decision 2001/51/EC) financed such activities.
4.2 The concerns
- Legal basis
The UK argued that Article 13 EC is not an appropriate legal basis
for the creation of this institute.
- Need for new body
Why do we need a new body? Why is it that with all the bodies and
institutes at international, EU and national levels existing at the
moment real gender equality is still not achieved? Do we really
need the creation of yet another body to achieve real equality? Is
the creation of this institute really necessary or does is create
just more bureaucracy at EU level? Lots of structures already exist
in the field of EU law. If one is serious about employment
segregation then why is there that nothing has really been done to
affect it? How is this new institute justifiable on the basis of
the principle of sustainable development of EU legislation?
- ill-defined relationship with existing bodies and
agencies charged with equality issues at EU or at MS level
There is a real risk of duplicating activities.
- independence of the body
People on the management board all seem to be more or less
controlled by Community institutions.
- conflicts between different functions
On the one hand, the institute is supposed to adopt a scientific
approach using proper methodology. For instance, the institute is
supposed to collect and analyze data. On the other hand, the
institute is supposed to have a very political mission to promote
gender equality. This will lead to controversial political issue.
So which functions really is the institute supposed to do? Is it a
scientific body or a political body?
5. Case law of the ECJ in 2004-05
The ECJ case law is mainly characterised by continuity, in a good and in a bad sense.
5.1 Non-discrimination and equality
In Case C-220/02 Österrechischer Gewerkschaftsbund the ECJ confirmed its approach to non-discrimination and equality, which may be criticized since mixing up comparability and the prohibition of discrimination obfuscate the test that should be applied. The case concerned the calculation of a termination payment to which workers are entitled under certain conditions. The amount of the payment depends, inter alia, on the worker's length of service. For these purposes, the duration of military service or equivalent civilian service - performed mostly by men - was taken into account, in contrast to periods of parental leave - taken most often by women.
Instead of focussing on the potential discrimination and strictly testing the justifications, the Court recurred to its frequent statement, namely that non-discrimination is a particular expression of the general principle of equality and that the latter assumes that male and female workers whom the principle benefits are in comparable situations. Next, it found that men in military or civil service and women on parental leave are not in a comparable situation. The military or civil service corresponds to a civic obligation and is imposed in the public/collective interest. Parental leave is a matter of the worker and his family
5.2 Maternity and parental leave
A number of cases concerning maternity or parental leave were more successful. In Case C-356/03 Mayer the Court decided that the periods of statutory maternity leave had to be taken into account in the calculation of the claimants' rights to an insurance annuity under an occupational pension scheme. This case was decided under Directive 86/378, as amended by Directive 96/97.
In Case C-519/03 Commission v. Luxembourg, the Court made clear that parental leave of at least three months, as provided under directive 96/34, may not be reduced when it is interrupted by another period of leave, such as maternity leave, which has a different purpose from parental leave. Similarly, the Court found that a member State may not limit the possibility to take up parental leave by inserting, in the implementing legislation, the condition that the child at issue must have been born after 31 December 1998. The directive intends to grant a right to parental leave to parents of children who have not yet reached a given age. The abovementioned date limited this right.
The judgement in Case C-519/03 confirms earlier case law in which the Court has made clear that two different rights to leaves, both guaranteed under Community law, may not affect each other. Earlier in 2004, in Case C-342/01 Gómez, it found that a female worker is also entitled to take her annual leave during a period other than the period of her maternity leave, if the dates of annual leave, fixed in advance by a collective agreement between the undertaking and the workers' representatives, coincide with those of her maternity leave.
Finally, in Case C-284/02 Sass it was decided that Article 2(3) of Directive 76/207 precludes a collective agreement from excluding from a qualifying period for the passage to a higher salary grade, the part of the period during which a female worker took maternity leave. The fact that the maternity leave at issue was considerably longer than the minimum required by Directive 92/85 did not influence this finding. Mrs Sass had been employed by a public service of the GDR before the reunification and the problem in her case was purely internal. However, under Art.39 EC it becomes more and more frequent that persons find employment consecutively in different Member States. Therefore, the judgement may be of broader application in the future. Similar questions of how to compute seniority acquired in several countries, including periods of maternity leave in other countries, will arise inevitably.
5.3 Childcare allowances
The increased mobility of people that find employment consecutively in different Member States also has an impact on the allocation of family benefits/allowances by the different Member States. Indeed, the entitlement family benefits for workers who work in one Member State but have their place of residence in another Member State can overlap. The European Court of Justice has dealt with this matter on two occasions.
In Case C-543/03 Dodl and Oberhollenzer, the Court was asked to examine the situation where two Austrian nationals who work in Austria but live in Germany were refused national child-raising allowance by both authorities. The Court decided that the situation in which the legislation of each Member State grants the same allowance to the same member of the person's family and for the same period, will result in payment of the allowance by the Member State of employment. If, on the other hand, the person who takes care of the children carries out a professional activity within the same Member State as where he/she resides, the right to entitlement to child care allowance will be paid by the Member State of residence. The Court further held that the notion of 'employed person' as under Regulation 1408/71 refers to whether that person is covered by a general or special social security scheme.
This Court's reasoning on the overlapping of entitlements to family benefits has been reaffirmed in Case C-153/03 (Weide). In this case, the Court decided that Ms. Weide, as a spouse of the person that is entitled to family benefits, can claim child-care allowance from the Member State of residence in which her husband works.
5.5 Conflict between ILO and EC law
In Case C-203/03 Commission v. Austria, the ECJ has further elaborated on the Member States' obligations to eliminate incompatibilities brought about by ILO obligations imposing protective measures prohibited under Community law. The case concerned a prohibition of the employment of women in (i) work in a high-pressure atmosphere (ii) diving work and (iii) the underground mining industry. The general prohibition of the employment of women in diving work was found disproportionate, and the prohibition of work in a high-pressure atmosphere, even though it provided a limited number of exceptions, was also condemned as it precluded an individual assessment. The prohibition of the employment of women in the underground mining industry was also, as such, in breach of Article 2 (3) of Directive 76/207. However, it was found to be justified due to Article 307 of the EC Treaty, concerning the effects of obligations arising from international agreements. Under this Article, Austria was under a duty to denounce the ILO Convention, in order to eliminate any incompatibility with its Community obligations. However, the Court accepted that this could only be done at the next opportunity for denunciation, which is in 2007. At the previous occasion to do so, May 1997, it was not sufficiently clear that the obligations under the ILO conventions were incompatible with Directive 76/207.
5.6 Access to employment
In a case concerning access to employment, the Court found a breach of Community law. In Case C-319/03 Briheche, the Court held that a provision, under which an age limit for obtaining access to public-sector employment is not applicable to certain categories of women, while it is to men in the same situation as those women, cannot be allowed under Article 2(4) of Directive 76/207. It further held that the measures could not be justified either under Article 141(4) EC as it was disproportionate. Interestingly, the Court underlined (again - see also, for instance, Case C-407/98 Abrahamsson) that the aim of Article 2(4) is to achieve substantive, rather than formal, equality by reducing de facto inequalities which may arise in society and, thus, in accordance with Article 141(4) EC, to prevent or compensate for disadvantages in the professional career of the persons concerned.
5.7 Derogation to equal treatment on grounds of pension age
In two cases the difference in pension age and the problems this causes were at issue. Both cases are perfectly in line with previous case law of the Court. Case C-19/02 Hlozek concerned a difference in treatment as to the age when worker became entitled to a bridging allowance, paid under a social plan drawn up in the context of a restructuring operation of an undertaking. This age was for men 55 years and for women 50 years. The Court found this difference justified. This age was linked to the difference in statutory retirement age (55 for women and 60 for men under an early retirement scheme, allowed under Directive 79/7) and the criterion established took into account that workers approaching their retirement age are likely of not finding other employment anymore.
The Court took a slightly different approach in Case C-207/41 Vergani in which the difference of age applied to a voluntary redundancy incentive. According to Italian law, women over 50 and men over 55 years old who decide to voluntary resign, are given a taxation concession on the sums they receive on cessation of the employment relationship. The Court found the provision directly discriminatory as the difference in treatment could not be justified on grounds of the derogation of pension age.
Case C-303/02 Haackert concerned an early old-age pension for which women - again - qualified at an earlier age than men. Although this pension was not considered by the Court as an old-age pension for which Article 7(1)(a) allows to make a difference in pension age, there was, nevertheless no prohibited discrimination. The discrimination at issue was objectively necessary in order to ensure coherence between early old-age pension on account of unemployment and the old-age pension as such.
5.8 Indirect sex-discrimination
Indirect sex-discrimination was submitted to the Court in Case C-285/02 Elsner. The Court made clear that a national rule which provides that both full-time and part-time teachers do not receive any remuneration for additional hours worked when this work does not exceed three hours per calendar month, is potentially indirectly discriminatory. It was to the national court to establish that considerably more women than men are affected by this rule and that there is no objective justification.
Case C-196/02 Nikoloudi was a rather complex judgment partly because the referring court did not clarify various issues and, consequently, further relevant determinations had to be made at the national level. In brief, the case concerned regulations of OTE (Hellenic Telecommunications Organization), according to which part-time employment could not be taken into account in calculating an employee's length of service for the purposes of an old-age pension. Paradoxically, under the same regulations, only women could be taken on as part-time cleaners. On this the Court found that the creation of a category of exclusively female workers does not constitute, in itself, direct discrimination prohibited under Directive 76/207. However, such discrimination does exist when, subsequently, this as such neutrally defined category (in casu part-time workers) is less favourably treated.
The issue of indirect discrimination came up in this case because of an exclusion to appoint part-time temporary staff (in general, not only the abovementioned cleaners) as established (i.e. non temporary) staff. Here the Court repeated that a measure involves indirect discrimination when it works to the disadvantage of a much higher percentage of women than men. This was an issue to be further determined by the national court, as was the issue of the objective justification. However, the Court did indicate that a justification, according to which the factor part-time work should already constitute sufficient reason, could not be upheld. Neither was upheld OTE's argument that is was pursuing a legitimate aim falling within policy on economic development and job creation or that it was in general public and social interest that a national public utility undertaking should not bear excessive burdens. Also the total exclusion of part-time employment, when calculating length of service, was considered as potentially indirectly discriminatory by the Court. Finally, the Court confirmed that in matters of indirect discrimination, it is to the employer to show that there are objective reasons which justify the difference in treatment in that substantially greater percentage of members of one sex are affected.
Indirect discrimination has also been examined in relation to the situation of pregnant workers. In Case C-191/03 McKenna, a pregnant worker challenged an Irish provision in which the pay of an employee who is absent from work due to pregnancy related illness, is reduced in the same way as workers absent for reasons of pathological illness. Although this reasoning is in line with the previous case law of the ECJ (cf. Hoj Pedersen, Gillespie and Brown), the ECJ took a very restrictive stance as regards to the second part of the question. According to the Irish provision, the number of sick days will be offset against the total number of paid sick days. In concreto, this means that a pregnant worker is more likely to exhaust her full paid sick days quicker than a male worker who stays at home due to another illness. This provision may eventually infringe the 'special' status of female workers within the EC.
The Court did, however, decide that the number of sick days due to pregnancy related illnesses can be offset against the total number of paid sick days on the condition that the sick days taken up for pregnancy related illness, do not result in a pay lower than the minimum amount to which the worker was entitled under maternity leave.
5.9 Equal treatment to fight precarious employment
Case C-313/02 Wippel showed the limits of using equal treatment to fight precarious employment. Ms Wippel was employed as a 'worker on demand with Peek Cloppenburg. Her working hours and organization of working time were determined on a case-by-case basis. She could also refuse the offer to work without having to justify her refusal. The drawback of this arrangement was that Ms. Wippel was not guaranteed a fixed income. In her opinion, the absence in her employment contract of an agreement as to working hours and the organization of working time constituted sex-discrimination. However, in a complex judgment the court did not find that there was such discrimination, in particular because there was no less favourable treatment of part-time workers working on demand and full-time employees or other part-time workers.