Re: Draft opinion of the Committee on Legal Affairs and Internal Market for the Committee on Women’s Rights and Equal Opportunities on gender mainstreaming in the European Parliament
Brussels, 12 December 2002
Dear Mr. Chairman,
As Members of the Committee on Women’s Rights and Equal Opportunities, we have taken note with great interest of the content and conclusion of your draft opinion on gender mainstreaming in the European Parliament. Although we share most of the views expressed in the short justification of your draft opinion, we do not agree with your conclusions. [:]
You rightly conclude that the case law on the directive 76/207/EEC, in particular the Kalanke- and Marschall cases restrict the possibilities of positive action in order to nominate/ promote women. At the time, in 1995 and 1997, we were very shocked by the interpretation of the Court of the relevant article of the directive. This led to the Women’s Rights Committee to ask the Commission to amend the directive. However, after that the Commission had submitted a proposal to the Council and the European Parliament to remedy the shortcomings of the directive, we decided to ask the Commission to withdraw its proposal due to lack of a proper legal basis for the proposal.
After extensive political pressure of the Women’s Rights Committee and the European Parliament, the Council decided to add a suitable legal basis in the Amsterdam Treaty to allow for positive action to favour the women as the under-represented sex, namely article 141(4): “With a view to ensuring full equality in practise between and men and women in working live, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” In addition, the Declaration 28 to the Amsterdam treaty pronounces: “When adopting measures referred to in article 141 (4) of the Treaty establishing the European Union, Member States, in the first instance aim at improving the situation of women in working life.”
This provided for a solid legal basis for positive measures and a revision of the directive 76/207/EEC to repair the case law in casu Kalanke and Marschall. Heidi Hautala was nominated by the Women’s rights Committee as the rapporteur on the new proposal by the Commission to amend the Directive.
On 23 September 2002 the Council and the Parliament have signed the new directive, which was adopted in the European Parliament 12 June 2002. The main points of the new directive include:
– ‘Sexual harassment’ is defined for the first time at EU level
– definition of ‘direct discrimination’, ‘indirect discrimination’ and harassment’
– prohibition of discrimination against women on the grounds of pregnancy or maternity leave
– the right of return to the same job or an equivalent post after maternity leave, or after paternity or adoption leave, where such rights are recognised by Member States
– the Amsterdam Treaty provisions on positive measures are incorporated into the new directive (i.e. the possibility for Member States to provide specific advantages to the under-represented sex in a professional activity). Member states shall report every four years to the Commission on the measures taken in this area.
– Member States have undertaken to implement the provisions of the new directive by 2005, including also
– the setting up of special equality bodies, whose responsibilities must include promotion, analysis, monitoring and support of equal treatment for men and women;
– employers and those responsible for vocational training shall take preventive measures against discrimination on grounds of sex, in particular against harassment and sexual harassment;
– effective sanctions shall be introduced without any prior upper limit fixed for compensation to victims of discrimination;
– active and systematic measures to promote gender equality at the workplace;
Although your conclusion might have been appropriate prior to the approval of the revised directive 76/207/EEC or entry into force of the Amsterdam Treaty, to amend you draft opinion as it stands now is difficult considering that a large part of your not amendable justification is leading to an outdated conclusion. In light of the above, we wish you might consider withdrawing your draft opinion.
With kind regards,
Heidi Hautala, Greens/EFA
Rapporteur for directive 76/207/EEC
Lissy Gröner, PSE
Rapporteur for gender mainstreaming in the EP