Other available languages: FR
* 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.