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  As things stand at present, a women who feels that she has been
  discriminated against, for example because she feels that she is being
  paid less than a man for the same work or work of equal value, can
  apply to the courts, for the national laws of the Member States,
  applying Community law, have all taken up the principle of equal
  treatment of men and women.
  However, the practical difficulties in applying this principle are
  numerous and in many cases, insurmountable, for national laws, lay
  down that the complainant - the women who feels that she is being paid
  less than a man in the case we cited - must prove the truth of her
  assertion and it is often very difficult or impossible to provide that
  proof.  However  if the complainant is unable to provide such proof,
  she loses the case. This is why, in many cases, women who feel that
  they have been discriminated against do not even try to get the courts
  to right the wrong which has been done to them.
  This is the kind of situation which the Commission was seeking to
  remedy when it recently adopted a proposal for a Directive, which does
  not aim to create new forms of protection for women, but, rather, to
  improve compliance at national level with existing Community law.
  What the Commission is proposing is simple: instead of a women or a
  man having to prove that they were discriminated against, it would be
  the respondent - in the case cited, the employer - who would have to
  provide proof that the charges made against him are injustified,
  failing which he would lose the case. At the same time, the
  Commission's proposal does not go as far as completely reversing the
  burden of proof, for it lays down that the complainant, i.e. the women
  who feels herself to be victim of discrimination, should establish a
  simple presumption of discrimination. In the example we have used,
  this would mean that she woule have to provide information about the
  nature of her job in relation to that of her better-paid male
  colleague, her seniority in that job, the favourable reports she may
  have from her superiors about her performance of that job, and so
  forth, which would enable the court to form an opinion on whether
  there has been discrimination.
  Our example concerned equal pay. The Commission's proposal covers all
  Community provisions in respect of equal treatment, whether existeing
  or still to come, and thus all national procedures in respect of
  recourse to the courts in all sectors, public and private, except in
  criminal cases. At present, Community Directives in force concern
  equal treatment in respect of access to employment,
  
  * COM(88)269
                                   - 2 -
  vocational training and promotion, working conditions, the self-
  employed occupations, including agriculture, and the whole wide field
  of social security, whether this involve statutory or company schemes.
  The Commission's proposal likewise sets out to ensure the existence of
  effective procedures for considering complaints and for obtaining and
  providing information. On the one hand, the courts should have all the
  powers they require to consider complaints effectively. On the other,
  all the information which is necessary for the presentation of a case
  must be obtained from the party who possesses it or who may reasonable
  be required to obtain it, that is, wher obtaining such evidence would
  not cause that party an undue burden.
  This information should be provided to the party who requires it,
  though the court or other competent authority retains the discretion
  not to pass on confidential information, disclosure of which would
  cause substantial damage to the interests of the disclosing party for
  reasons other than the litigation concerned, e.g. sensitive
  information, business secrets, etc.
  The proposal is likewise intended to clarify for national courts the
  concept of indirect discrimination on the basis of judgments handed
  down by the European Court of Justice. The proposal for a Directive
  defines indirect discrimination as existing where an apparently
  neutral provision, criterion or practice disproportionately
  disadvantages the members of one sex, by reference in particular to
  marital or family status, and is not objectively justified by any
  necessary reason or condition unrelated to the sex of the person
  concerned.
  Let us look at a number of examples. If an employer pays relatively
  less for part-time work or half-time work, he may be discriminating
  indirectly against women, who are the main applicants for these types
  of work. If an employer lays down as a condition of employment that
  the applicant must be over 1.70 metres tall, he is discriminating
  indirectly agains women. If the fact of having dependent children is
  an obstacle to access to a job, this, for obvious reasons, is another
  indirect discrimination against women.
  This Commission proposal on amendment of the burden of proof was
  provided for in the Community medium-term programme on equal
  opportunities for women 1986-1990. Its importance is obvious, for it
  is an attempt to resolve problems of procedure encountered by
  complainants in all the Member States, problems which have the effect
  of depriving of much of their power the fundamental guarantees
  provided by Community legislation.
   
   

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