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MEMO/08/742

Brussels, 27 November 2008

Directive on equal treatment for men and women in employment

What is the Directive on equal treatment for men and women in employment?

Directive 2002/73/EC is a central element in the broader body of European legislation on equal treatment between women and men. It aims to implement the principle of equal treatment between men and women in employment, prohibiting any discrimination on the basis of sex, either directly or indirectly by reference, in particular, to marital status.

The Directive introduces detailed definitions of direct and indirect discrimination, harassment and sexual harassment. It requires Member States to create a body to promote, analyse, monitor and support equal treatment without discrimination on the grounds of sex and to encourage dialogue with non-governmental organisations.

When did the legislation have to be transposed into national law?

The Directive was adopted, unanimously, by the Member States in 2002.

It had to be transposed into national law by 5 October 2005 and by 1 January 2007 for Romania & Bulgaria.

Which Member States have transposed the Directive into national law and which ones have done so properly?

All the Member States have now transposed the Directive into national law.

The Commission, as "Guardian of the Treaties", is studying the national legislation of all the Member States in detail to see if it correctly reflects the requirements of the Directive. If it does not, the Commission launches infringement procedures against the Member State/s concerned.

What kind of problems has the Commission identified?

Main problem areas in the reasoned opinion to Italy:

  • It is not clear whether an Equality Body with the three functions required by the Directive (report, recommendation and assistance to victims) has been set up in Italy.

Main problem areas in the reasoned opinion to Lithuania:

  • The right of a woman on maternity leave to return to an equivalent post after the end of her period of maternity leave is not guaranteed by Lithuanian law.
  • There is no guarantee that the Equality Body has the right to carry out independent surveys and to publish independent reports (apart from one annual report).

Main problem areas in the reasoned opinion to Hungary:

  • It is not clear whether the principle of equal treatment which should cover membership or involvement in an organisation of workers or employers also covers social organisations.
  • It is not clear that sanctions are foreseen to redress breaches of equal treatment.
  • It is not clear whether the national Equality Body has the three functions of producing reports, recommendations and giving assistance to victims.

Main problem areas in the reasoned opinion to Malta:

  • The definitions of direct and indirect discrimination as contained in the Directive are not correctly transposed in the Equality of Men and Women Act;
  • As regards the compensation for loss and damage sustained by a person injured as a result of discrimination contrary to Article 3 of the Directive, the details on rules and sanctions have not been communicated.
  • The independence of the Equality Body is not guaranteed.

Main problem areas in the reasoned opinion to Austria:

  • At federal level, regarding the protection against dismissal, the person affected does not have the right to demand compensation for non-material harm, to decide not to return to work and to demand compensation.
  • Two problems remain in Upper Austria: the lack of definition of indirect discrimination and the lack of entitlement to return to the same or an equivalent job after a period of maternity leave.

Main problem areas in the reasoned opinion to Slovenia:

  • Protection against termination of employment contract during the maternity leave and after the return to work is not assured.

If the Commission is sending reasoned opinions to six countries, does that mean that the other Member States have done everything correctly?

Not necessarily. Although the Commission is at the reasoned opinion stage with those six Member States, it is still examining the legislation of the other Member States, while other infringement procedures are at a more advanced stage.

How do infringement procedures work?

First, the Commission sends what is called a "letter of formal notice" explaining in general why it thinks the Member State has incorrectly implemented the Directive into its national law.

The Member State then has two months to reply. If it does not reply, or if the Commission is not convinced by the reply, the Commission can go to the next step of the infringement procedure by sending a "reasoned opinion". This sets out in much more detail the legal arguments. Again, the Member State has two months to reply.

If the Commission still thinks the Member State has incorrectly transposed the Directive, it can at this point refer the case to the European Court of Justice in Luxembourg.

At each stage, a formal decision must be taken by the Commission.

See also IP/08/1821


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