Handbook on equal treatment for men and women in the European Community

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Handbook on equal treatment
for men and women in the
European Community
EUROPEAN COMMISSION
DIRECTORATE-GENERAL FOR
EMPLOYMENT, INDUSTRIAL RELATIONS
AND SOCIAL AFFAIRS This document has been prepared for the European Commission.
It does not necessarily represent the Commission's official position. HANDBOOK
ON EQUAL TREATMENT
FOR MEN AND WOMEN IN THE
EUROPEAN COMMUNITY Author: Junia Pais Macedo van Overbeek
Cataloguing data can be found at the end of this publication.
Luxembourg: Office for Official Publications of the European Communities, 1 995
ISBN 92-826-8325-7
© ECSC-EC-EAEC, Brussels · Luxembourg, 1995
Reproduction is authorized, except for commercial purposes, provided the source is
acknowledged.
Printed in Italy Contents
Introduction 7
Case-law of the European Court of Justice 11
Case 80/70 - G. Defrenne ν Belgium (Defrenne I)1
Case 43/75 -.e ν Sabenae II)3
Case 149/77 - G. Defrenne ν Sabena (Defrenne III)5
Case 129/79- Macarthys ν W. Smith7
Case 69/80 - S.J. Worringham and M. Humphreys ν Lloyds Bank 19
Case 96/80- J.P. Jenkins ν Kingsgate 22
Case 12/81 - E. Garland ν British Rail5
Case 19/81 - A. Burton ν British Railways Board7
Case 58/81 - Commission ν Luxembourg9
Case 61/81 -n ν United Kingdom 31
Case 163/82 -n ν Italy3
Case 165/82 - Commission ν United Kingdom5
Case 14/83 - S. von Colson and E. Kamann ν Land Nordrhein-Westfalen 38
Case 79/83 - D. Harz ν Deutsche Tradax 42
Case 184/83 - U. Hofmann ν Barmer Ersatzkasse4
Case 23/83 - W.G.M. Liefting a.o. ν Academisch Ziekenhuis Universiteit van Amsterdam 46
Case 143/83 - Commission ν Denmark9
Case 248/83 -n ν Germany 51
Case 151/84- J. Roberts ν Tate & Lyle5
Case 152/84 - M.H. Marshall ν Southampton and South-West Hampshire Area Health
Authority (Teaching)8
Case 262/84 - VM. Beets-Proper ν F. van Lanschot Bankiers 61
Case 170/84 - Bilka-Kaufhaus ν Κ. Weber von Hartz3
Case 222/84 - M. Johnston ν Chief Constable of the Royal Ulster Constabulary 66
Case 150/85- J. Drake ν Chief Adjudication Officer 71
Case 237/85- G. Rummler ν Dato-Druck3
Case 71/85 - The Netherlands ν Federatie Nederlandse Vak-beweging 76
Case 286/85 - Ν. McDermott and A. Cotter ν Minister for Social Welfare (McDermott and
Cotter I) 79
Case 30/85 - J.W. Teuling ν Bedrijfsvereniging voor de Chemische Industrie 81
Case 384/85 - J. Borrie Clarke ν Chief Adjudication Officer 84
Case 192/85 - G.N. Newstead ν Department of Transport6
Case 157/86 - M. Murphy a.ο. ν Bord Telecom Eireann9
Case 80/87 - A. Dika.o. ν College van B8cW Arnhem and Winterswijk 91
Case 318/86 - Commission ν France 93
Case312/86 -n ν France6
Joined Cases 48,
106 and 107/88 - J.E.G. Achterberg-te Riele a.ο. ν Sociale Verzekeringsbank Amsterdam 99
3 Handbook on equal treatment for men and women in the European Community
Case 171/88­ I. Rinner­Kühn ν FWW Spezial­Gebäudereinigung 102
Case 109/88­ Handels­og KontorfunktionaerernesForbundiDanmarkv Dansk Arbejdsgiver­
forening (Danfoss) 104
Case 102/88­ M.L.Ruzius­WilbrinkνBestuur van deBedrijfs­vereniging voor Overheids­
diensten107
Case 262/88 ­ D.H.BarberνGuardianRoyalExchange Assurance Group 109
Case C­33/89 ­ M.KowalskaνFreieundHansestadt Hamburg114
Case C­188/89­ Α. Fostera.ο.νBritishGas116
CaseC­177/88­ E.J.P.DekkerνVJV­Centrum118
CaseC­179/88­ Handels­og Kontorfunktionaerernes Forbund i Danmark ν Dansk Arbejdsgiver­
forening (Hertz/Aldi)121
Case C­373/89 ­ Caisse D'Assurances Sociales pour Travailleurs Independents 'Integrity' ν Ν.
Rouvroy 123
Case C­184/89­ Η.NimzνFreieund Hansestadt Hamburg 125
Case C­377/89­ A.CotterandN. McDermottνMinisterforSocial Welfare (Cotter and
McDermottII)128
Case C­229/89­ CommissionνBelgium131
Joined CasesC­87,
C­88 and C­89/90■Α.Verholenao. ν Sociale Verzekeringsbank Amsterdam 133
Case C­31/90­ E.R.JohnsonνChief Adjudication Officer 136
Case C­345/89­ Ministèrepublic ν A. Stoeckel139
Case C­208/90 ­ T. Emmott ν Minister forSocialWelfare141
Case C­243/90 ­ The Queen ν Secretary ofStateforSocialSecurity (ex­parte: F.R. Smithson) 144
Case C­3 60/90 ­ Arbeiterwohlfahrt der StadtBerlinνM.Botel146
CaseC­9/91 ­ The Queen v Secretary of StateforSocialSecurity (ex­parte: Equal
Opportunities Commission) 147
Joined Cases C­63
and C­64/91 ­ S.JacksonandP.CresswellvChief Adjudication Officer 151
Case C­2 2 6/91 ­ J. MolenbroekvBestuurvande Sociale Verzekeringsbank154
Case C­322/88 ­ S. GrimaldivFondsdesMaladies Professionelles1 57
Case C­106/89­ MarleasingvLa ComercialInternacional de Alimentación1 59
Joined Cases C­6
and C­9/90 ­ A. Francovich and D. Bonifaci ν Italy161
European Community legislation and other acts concerning equal
treatment for men and women
Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the
application of the principle of equal pay for men and women 1 67
Council Directive 76/207/EEC on the implementationoftheprinciple of equal treatment for men
and women as regards access to employment,vocationaltraining and promotion and working
conditions 169
CouncilDirective79/7/EEC on the progressive implementation of the principle of equal treatment
formenandwomeninmatters of social security172 Contents
Council Directive 86/378/EEC on the implementation of the principle of equal treatment for men
and women in occupational social security schemes 175
Council Directive 86/613/EEC on the 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 motherhood8
Council 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 181
Council Resolution of 12 July 1982 on the promotion of equal opportunities for women 189
Council Resolution of 7 June 1984 on action to combat unemployment amongst women 191
Resolution of the Council and of the Ministers for Education, meeting within the Council of 3 June 1985
containing an action programme on equal opportunities for girls and boys in education 194
Second Council Resolution of 24 July 1986 on the promotion of equal opportunities for women 198
Council Resolution of 16 December 1988 on the reintegration and late integration of women into
working life 201
Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work 203
Council Resolution of 21 May 1991 on the third medium-term Community action programme on
equal opportunities for women and men (1991 to 1995) 205
Commission Recommendation of 24 November 1987 on vocational training for women
(87/567/EEC) 208
Commission Recommendation of 27 November 1991 on the protection of the dignity of women
and men at work (92/131/EEC) 211
Council Recommendation of 13 December 1984 on the promotion of positive action for women
(84/635/EEC)9
Council Recommendation of 31 March 1992 on child care (92/241/EEC) 221
Commission Decision of 9 December 1982 relating to the setting up of an Advisory Committee
on Equal Opportunities for Women and Men (82/43/EEC) 224
Selected bibliography 227 Introduction
In the context of European law, the main source of Over the years, however, Article 119 of the EEC
law regarding equality in treatment for men and wo­ Treaty and the secondary legislation which has been
adopted subsequently have proved that the Com­men, in their capacity as workers, is provided by Ar­
ticle 119 of the 1957 Treaty establishing the European munity is not merely an economic union, but also in­
Economic Community (the 'EEC Treaty'). This Arti­ tends to ensure social progress and the improve­
cle, which provides that Member States must ensure ment of the living and working conditions of its peo­
and maintain the principle that men and women re­ ples. '
ceive equal pay for equal work, reads:
The European Court of Justice (hereinafter the
'ECJ'), as it will be seen from the judgments it has deli­
'Each Member State shall during the first stage en­
vered, has played a major role in the development
sure and subsequently maintain the application of the
of various issues concerning the law on equal treat­principle that men and women should receive equal
ment between men and women.
pay for equal work.
It was in 1971 that the ECJ had its first opportunity
For the purpose of this Article, 'pay' means the or­
to deal with the subject of discrimination between
dinary basic or minimum wage or salary and any other
men and women in the EEC. It all started when a
consideration, whether in cash or in kind, which the
private plaintiff, Ms Defrenne, invoked Article 119 be­
worker receives, directly or indirectly, in respect of his
fore a Belgian court against her employer, a private
employment from his employer.
company. Considering that this Article merely seemed
to impose an obligation on the Member States, the
Equal pay without discrimination based on sex
Belgian court concerned was unsure whether the
means:
provision could be relied upon by private plaintiffs in
order to secure their rights. It requested the ECJ to give
(a) that pay for the same work at piece-rates shall
in this respecta preliminary ruling under Article 177
be calculated on the basis of the same unit of
of the EEC Treaty. The decision delivered by the ECJ
measurement;
stating that Article 119 was indeed directly effec­
tive, i.e., that it could be relied upon by private indi­
(b) that pay for work at time-rates shall be the
viduals before the national courts, marked the
same for the same job.'
beginning of the development of a very rich source of
EEC law.
At the time this provision was drafted, the national
laws of most Member States did not explicitly pro­
The equal pay concept, embodied in Article 119 of
scribe gender discrimination. Considering the purely
the EEC Treaty, was further developed by the adoption
economic nature of the European Economic Commun­
on 10 February 1975, of Directive 75/11 7 on the ap­
ity (hereinafter the 'EEC'), the insertion of Article
proximation of the laws of the Member States relating
119 in the EEC Treaty was primarily aimed at the avoi­
dance of unfair competition due to a lower-paid fe­
male work force in other Member States. See Article 2 of the EEC Treaty. Handbook on equal treatment for men and women in the European Community
to the application of the principle of equal pay for correct and timely implementation by the Members
men and women. Since then, thanks to the Commis­ States to which they are addressed. The Commission,
sion's diligence, the scope of equal treatment legis­ as the Community's 'watchdog', has been responsi­
lation has been widened by the subsequent adoption ble for the initiation, under Article 169 of the EEC
of directives and other acts such as recommenda­ Treaty, of a number of infringement procedures
tions.2 against defaulting Member States.
Council Directive 76/207 of 9 February 1976 extend­
Private plaintiffs, on the other hand, have also con­
ed the principle of equal treatment to matters related
tributed in this regard, by bringing before their na­
to access to employment, vocational training and tional courts issues relating to EEC secondary legis­
promotion, and working conditions. The adoption of lation, thus enabling the ECJ to increase its useful ef­
Council Directive 79/7 on 19 December 1978, and fect.
Councile 86/378, of 24 July 1986, allowed for
the application of the principle of equal treatment
It did so by holding, in the first place, a number of
to matters of social security and to occupational social
provisions of directives to be directly effective. This
security schemes respectively.
made room for private individuals to invoke these
provisions against Member States which had not, or
Subsequently, the principle of equal treatment was
had incorrectly, implemented them in their national
expanded to cover the self-employed with the adop­
laws.
tion of Directive 86/613, on 11 December 1986, on
the application of the principle of equal treatment for
Secondly, by requiring national courts to interpret
men and women engaged in an activity, including
their national legislation in accordance with the con­
agriculture in a self-employed capacity, and on the
tents of these directives, the ECJ secured the effects
protection ofd women during preg­
produced by these directives in those situations where
nancy and motherhood. More recently, in respect of
private individuals could not invoke them, i.e.,
biological differences, Council Directive 92/85 on
against other private persons.
the introduction of measures to encourage improve­
ments in the safety and health at work of pregnant
workers and workers who have recently given birth or Despite the important role played by the EEC institu­
are breastfeeding was adopted. tions, it goes without saying that without the energy,
perseverance and inventiveness of all those private
plaintiffs and their legal counsel, equality for men and The effectiveness of the provisions contained in
women in the EEC would not have achieved such a these directives is very much dependent upon their
level of progress and development.
Article 189 of the EEC Treaty provides that: The aim of this handbook is to provide readers with
In order to carry out their task the Council and the Commission
a bird's eye view of equal treatment for men and wo­
shall, in accordance with the provisions of this Treaty, make regula­
tions, issue directives, take decisions, make recommendations or men in the EEC. To this end, all decisions in this area
deliver opinions.
delivered by the ECJ from 1971 until 1992 have been
A regulation shall have general application. It shall be binding in
its entirety and directly applicable in all Member States. summarized here. Three other cases relating to dif­
A directive shall be binding, as to the result to be achieved,
ferent aspects of EEC law have also been included here
upon each Member State to which is addressed, but shall leave to
the national authorities the choice of form and methods. as they may have great repercussions in the field of
A decision shall be binding in its entirety upon those to whom it
equality in treatment for men and women. One of the
is addressed.
Recommendations and opinions shall have no binding force. most important of these decisions is undoubtedly