SOCIAL RIGHTS IN THE EU THE PRINCIPLE OF EQUALITY BETWEEN MEN AND WOMEN

UNIVERSITY OF ATHENS

SCHOOL OF LAW, ECONOMICS, AND POLITICAL SCIENCES

DEPARTMENT OF POLITICAL SCIENCE AND PUBLIC ADMINISTRATION

Master’s Program: “European and International Studies”

SUBJECT: EU LAW

PROFESSORS: E. Dousi, K. Boskovits

SOCIAL RIGHTS IN THE EU

THE PRINCIPLE OF EQUALITY OF MEN AND WOMEN

TO EMPLOYMENT

Anna Karamanou

6 April 2005

SOCIAL RIGHTS IN THE EU:

THE PRINCIPLE OF EQUALITY OF MEN AND WOMEN

TO EMPLOYMENT

Anna Karamanou

INTRODUCTION

The claim for women’s social rights and gender equality in Europe has been a long and arduous process. From the recognition of the right to vote in the early 20th century, it moved to the institutionalization of the principle of equal pay for men and women in the founding Treaty of the European Community, and finally to the Charter of Fundamental Rights and the European Constitution awaiting ratification.

The European Community, that is, from the time of its establishment, institutionalized the principle of equal pay. Subsequently, a series of legislative provisions and policy measures were proposed, aimed at ensuring equal rights to access employment, vocational training, working conditions, and social protection. During the 1970s and 1980s, five directives on equality in employment were issued. Greece’s harmonization with these directives was achieved through laws 1414/84 and 1483/84, which form the basis of Greek labor law regarding gender equality in employment relations (Stratigaki M., 2002). In 1992, the sixth directive for the protection of pregnant women was issued, and in 1996 a seventh for parental leave. However, the most significant development was marked by the signing of the Amsterdam Treaty, which came into effect on May ¹, 1999, where the legal basis for promoting women’s rights is significantly strengthened. The Community emphasizes its pursuit to eliminate inequalities and promote equality at the level of employment and social protection (articles 2 & 3). For the first time, equality is defined as a fundamental goal of the Community, while all institutions of the Union and the member states are required to take the principle of equality into account in all their policies (gender mainstreaming).

Today, a total of thirteen directives, along with a case law of approximately 200 decisions from the Court of Justice of the European Communities, represent the established community acquis on gender equality in employment. However, despite the rich legislative work of the EU, discrimination and inequalities in employment and vocational training persist. In 2002, the gender pay gap reached 16%, while unemployment affected 8.7% of women compared to 6.9% of men. Less than 20% of students specializing in information and communication technologies are women.

The presentation that follows mainly refers to the legal protection and the clearly defined policy (the European acquis) for gender equality in the labor market, as developed from the Treaty of Rome (1957) to the present day.

GENDER EQUALITY IN CONDITIONS

Community Law after Rome

The European Community, with the Treaty of Rome, established the principle of equal pay for women and men (Article 119/1957). Despite the fact that this establishment aimed to ensure equal competition among the six founding states of the Community, it nevertheless became the basis for further legal recognition of gender equality in labor relations. Since 1975, a significant number of community measures have been adopted, which clarified and developed this basic principle of community legislation, aiming for equal rights of access to employment, vocational training, working conditions, and social protection. In this direction, there was a significant contribution and influence of social movements in Europe after 1968, including the feminist movement.

Community Law covers a wide range of disparities in employment with the following 13 Directives:

Directive 75/117/EEC of the Council of February 10, 1975, on the approximation of the laws of Member States regarding the application of the principle of equal pay for men and women, which complements Article 141, requiring equal pay for “work of equal value.”

Directive 76/207/EEC of the Council of 9 February 1976 on the implementation of the principle of equal treatment for men and women with regard to access to employment, vocational training and promotion, and working conditions, which expands the scope of Article 141 (formerly 119 of the Treaty of Rome), establishing the principle of equal treatment regarding access to employment and providing an opportunity for the promotion of positive action measures, as amended by Directive 2002/73/EC.

Directive 79/7/EEC of the Council of December 19, 1978, on the progressive implementation of the principle of equal treatment of men and women in matters of social security, which progressively applies the principle of equal treatment concerning the legal systems of social security.

Directive 86/378/EEC of the Council of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (as amended by Directive 96/97/EC of 20 December 1996), which applies the principle of equal treatment in occupational social security schemes. This directive was amended on 20 December 1996.

Directive 86/613/EEC of the Council of 11 December 1986 on the implementation of the principle of equal treatment for men and women engaged in independent activities, including agriculture, as well as the protection of motherhood.

Directive 92/85/EEC of the Council of 19 October 1992 concerning the implementation of measures to improve the health and safety at work of pregnant women, women who have recently given birth and women who are breastfeeding (specific directive within the meaning of Article 16, paragraph 1, of Directive 81/391/EEC).

Directive 96/34/EC of the Council of June 3, 1996, concerning the framework agreement on parental leave concluded by UNICE, CEEP, and CES, which aims to reconcile family and professional life. This was the first directive on the implementation of a framework agreement concluded by social partners at the community level.

Directive 97/75/EC of the Council of 15 December 1997 amending and extending, in the United Kingdom and Northern Ireland, Directive 96/34/EC concerning the framework agreement on parental leave concluded by UNICE, CEEP, and CES.

Directive 97/80/EC of the Council of December 15, 1997 concerning the burden of proof in cases of discrimination based on sex, according to which the burden of proof lies with the defendants in cases of discriminatory treatment in the workplace and they are called upon to prove that the principle of equal treatment has not been violated. This Directive was extended by Directive 98/52/EC.

Directive 97/81/EC of the Council of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP, and CES, which aims to promote the reconciliation of family and professional life.

Directive 2004/113/EC on the application of the principle of equal treatment of men and women in access to goods and services.

GENDER EQUALITY AFTER THE AMSTERDAM TREATY

With the entry into force of the Amsterdam Treaty on May 1, 1999, the efforts of the European Union to achieve gender equality were strengthened. The Amsterdam Treaty was particularly significant for the promotion of women’s rights throughout the European Union and represented an important step forward in terms of implementing equality in the labor market:

Article 2 of the EC Treaty declares the promotion of “gender equality” as a fundamental task of the Community.

In Article 3 paragraph 2, the elimination of inequalities between the sexes is provided for in the objectives, strategies, and actions of the Community, specifically that, in all 21 specific activities listed in Article 3, paragraph 1, the Community should seek to eliminate inequalities and promote equality between men and women. In this way, the policy of integrating the gender dimension into all areas (gender mainstreaming) was established in the EC Treaty.

In Article 141 paragraph 1, It is defined that equal pay should apply not only to similar work but also to work of equal value.

In Article 137 paragraph 1, The Community is called upon to support the actions of the member states aimed at promoting “equality between men and women concerning opportunities in the labor market and equal treatment.”

Article 141, paragraph 3 aims at the implementation of the principles of equal opportunities and equal treatment in matters of work and employment, including the principle of equal pay for equal work or work of equal value. These measures are approved within the framework of the co-decision procedure. Article 141 serves as the legal basis for Community measures concerning equal opportunities and equal treatment of men and women in employment matters.

In Article 141 paragraph 4 provided for the establishment of “measures that foresee special advantages, which facilitate the underrepresented gender to continue a professional activity or prevent or offset disadvantages in the professional career.”

In Article 13, there is a clear mandate for action to combat discrimination, among other things, on the grounds of gender. In contrast to Article 137 paragraph 1 and Article 141, the measures based on Article 13 are subject to unanimity, with simple consultation with the Parliament.

The following legislative acts regarding gender equality were established based on the provisions of the Amsterdam Treaty:

Directive 2002/73/EC of the European Parliament and of the Council of ²³September 2002, amending Council Directive 76/207/EEC,

Regulation No. 806/2004/EC of the European Parliament and of the Council concerning the promotion of gender equality in development cooperation, which was approved on April 21, 2004, according to Article 179 of the EC Treaty (cooperation for development). This regulation aims to implement gender mainstreaming.

Directive 2004/113 of the Council on the implementation of the principle of equal treatment for men and women in access to goods and services.

The Lisbon European Council (March 2000) set new ambitious goals to increase the employment rate of women to 60% by 2010, up from 53% today, in order to address the demographic problem as well. The aging workforce, which also results in pressure on pension systems, has raised alarm about the need for long-term and sustainable solutions. It has been estimated that attracting a larger number of women to the workforce and training is a vital necessity to ensure high levels of social protection and social security. Women are the key to the future prosperity of Europe.

To further promote this policy, on June 7, 2000, the European Commission, following a proposal from the Greek Commissioner Ms. Anna Diamantopoulou, approved a comprehensive framework strategy for gender equality (2001-2005), which represents the first integrated approach. A key element of this strategy is the incorporation of the gender dimension at all levels of policy, thereby connecting all community initiatives for gender equality:

Equality in economic life
Equality in social rights
Equality in decision-making
Equality in citizens’ rights and daily life
Reallocation of gender roles and combating stereotypes

An important milestone for the issue of gender equality in employment was the European Council of Barcelona (March 15-16, 2002), where for the first time decisions were made to create care infrastructures by 2010, throughout the territory of the European Union, in order to cover at least 90% of the needs for children from 3 years old until the age of compulsory education and at least 1/3 for children under 3 years old. Furthermore, there should be at least one computer connected to the internet for every 15 children.

It is also worth emphasizing that the Spanish Presidency (first half of 2002) highlighted the fight against violence against women, in all its forms, as one of its priorities, particularly:

Domestic violence
Sexual violence
Violence in the workplace

COMMUNITY ACTION PROGRAMS

Taking into account that the application of legislation alone is not a sufficient condition for the promotion of real equality, efforts have been made to promote specific policy measures aimed at promoting equality between men and women through successive multiannual programs:

– Decision of the Council, of December 20, 2000, on the Community Framework Strategy on Gender Equality (2001-2005), which was approved by the Council after consultation with the European Parliament, in accordance with Article 13 EC. This decision establishes the Fifth Action Programme for Gender Equality, aiming to promote and disseminate the values and practices on which gender equality policy is based, to improve understanding of this issue, to develop the capacity of stakeholders to act effectively, and to facilitate the implementation of the Community Framework for Gender Equality.

– Decision No. 803/2004/EC of the European Parliament and of the Council establishing a community action program (2004 – 2008), aimed at preventing and combating violence against children, young people, and women and protecting victims and at-risk groups (Daphne II Program) , which was approved in accordance with Article 152 of the EC Treaty (public health policy). This decision significantly contributes to the development of the EU’s policy on combating violence and incorporates all the experience gained since 1999 during the first phase of this action program.

In the context of the gender mainstreaming strategy, the policy of the Structural Funds plays a significant role, as they are an important community tool for promoting equal opportunities. The funding of programs introduced by the European Parliament (NOW, DAPHNE, LEADER, URBAN, EMPLOYMENT), has significantly helped in reducing inequalities in the field of employment, access to the labor market, as well as in protecting women from violence and exploitation. Similar initiatives have been undertaken within the framework of the 3rd CSF, particularly through the EQUAL programm, aimed at reducing unemployment. Theoretically, this new mainstreaming policy provides more opportunities for changing the dominant culture in employment, politics, trade unionism, the economy, and the family.

EQUALITY AFTER THE NICAEA TREATY

The Treaty of Nice addresses the issue of gender equality minimally and does not expand its legal basis. However, a new paragraph was added to Article 13 of the EC Treaty, according to which the Council can apply the co-decision procedure of Article 251 of the EC Treaty for the establishment, by special majority, of community measures encouraging actions taken by the member states to combat discrimination. In this direction, a new measure was established on April 29, 2004, in accordance with Article 13 paragraph 2 of the EC Treaty. Decision No. 848/2004/EC of the European Parliament and of the Council establishing a Community action programme aimed at supporting organizations active at the European level in the field of gender equality.

WOMEN’S RIGHTS IN THE EUROPEAN CONSTITUTION – critical assessment

Comparing the Treaty for the Establishment of a Constitution, agreed upon at the European Council in Brussels on June 18, 2004, with the requests made by the Committee on Women’s Rights of the European Parliament, in general, progress is observed concerning the following requests:

Incorporation of the Charter of Fundamental Rights into the Constitution
Reference to the equality of women and men as a principle – not as a value – in Article I-2 which defines the values of the Union.
Recognition in Article I-3 of the promotion of gender equality as one of the Union’s objectives.
Application of the principle of gender mainstreaming in part III (Articles III-2 and III-3), which means that the elimination of inequalities and the promotion of equality between men and women is applied in all areas of Union policy.
Integration into the area of freedom, security, and justice of measures for the prevention and combating of the illicit trade in women and children.
Approval of the Declaration in the Final Act, within which it is agreed that the various Union policies will aim to combat all forms of domestic violence.

Without a doubt, the provisions of the constitution strengthen the rights to which they refer. The obligation imposed by the European Constitution to respect fundamental rights is particularly important for women, who have a clear interest in the recognition of rights. However, gender equality is included in Article 2 of the first part of the Constitution as a principle and not as a value, as the European Parliament and all women’s organizations persistently requested. Unfortunately, the request was not accepted, even though the entirety of national constitutions includes provisions for gender equality. The promotion of equality remains among the Union’s objectives, as it did in the previous treaties.

Equality with limitations

In the Charter, the ambiguity of Article 23 raises serious doubts. In the first paragraph, it states: “Equality between men and women must be ensured in all areas, including employment, work, and remuneration.” The extension of equality to all areas certainly represents progress compared to the European acquis, which is limited to equality in employment. However, the second phrase “including employment, work, and remuneration” redirects the application of equality to the known fields.

In the best of cases, the interpretation of Article 23 will apply gender equality not only in labor but also in family, politics, culture, sexuality, and all areas where discrimination against women occurs. This would mean real progress towards a broader notion of equality and towards a more serious approach to gender mainstreaming. However, it is more likely that the principle of equality will be applied only in the areas explicitly mentioned in the Charter (employment, work, remuneration) rather than “in all areas,” as they are not specifically mentioned. The ambiguity and generality of the provision do not allow for predictions about the impact it will have on the progress of equality in the European environment. In Article 141 of the TFEU, the provision regarding work and equal pay was formulated more clearly and had direct application, while Article 23 is rather a general statement of intention. As for the positive measures mentioned in Article 23, they are inferior to Articles 2 and 3.2 of the TFEU (Emanuela Lombardo, Paper for the ECPR Conference, Marbourg, 18-21/09/2003).

The second part of article 23 allows positive measures, stating that “the principle of equality should not prevent the maintenance or adoption of measures providing specific advantages for the underrepresented gender.” This wording uses so-called positive measures more as an exception to the principle of non-discrimination and less as a “necessary measure to achieve substantive gender equality” (Article 141 of the TFEU).

Women + 16 minorities

Article 21 of the Charter reiterates provisions against discrimination, including gender, along with all other minorities (a total of 16). The demand for a separate article in the Constitution for combating discrimination based on gender and promoting equality between men and women, with direct legal effects, supported by Parliament, experts, and women’s organizations, remained unanswered.

The provision for the reconciliation of professional and family life (Article 33.2) is more limited than the existing legislation and case law of the European Court of Justice. When read in conjunction with Article 34, it could be interpreted as an obstacle to paid parental leave. It is therefore clear that the Charter does not merely repeat existing EU provisions, but also attempts to limit them.

In the Third Part (functional) of the Treaty regarding “policies and the functioning of the Union,” the objective of integrating the principle of gender equality (gender mainstreaming) into all policies is included, as described in Article 2, with the known weaknesses mentioned earlier. The principle of non-discrimination in Article 8 would be more effective (including a possible reference to the issue of violence against women) if the proposal by the Vice-President of the Assembly, Mr. Amato, to replace unanimity with qualified majority voting were accepted. Regarding Article 108 of the third section, it is a faithful reproduction of Article 141 of the EC Treaty, which pertains to equal pay and equal treatment in the workplace.

In conclusion, the Constitution did not particularly honor gender equality. From a legal perspective, however, the true test of the value of the provisions will come when the time comes for them to be interpreted by the European Court of Justice.

PENDING ISSUES – The positions of the European Parliament.

The new Constitutional Treaty did not meet all the demands of the Women’s Rights and Gender Equality Committee of the European Parliament, as well as those of European women’s organizations, which had proposed:

Integration of a new article with direct effect, which would result in the prohibition of discrimination based on gender, the assurance of equal rights for women and men, and the undertaking of positive actions to eliminate inequalities in this area (similar to Article 12 of the EC Treaty regarding nationality). In contrast, according to current provisions, measures to combat discrimination must be established unanimously by the Council, after obtaining the consent of the European Parliament (Article III-8, former Article 13 of the EC Treaty).

The equality of men and women was not included in the shared responsibilities of the EU.

The balanced representation of women and men in decision-making processes, and especially in the institutional bodies of the EU, was not incorporated into an article of part III (in the chapter concerning the institutional bodies). Moreover, the Assembly’s proposal regarding the appointment of Commissioners, according to which each member state should draw up a list of three individuals, in which both genders would be represented, was not incorporated into the final text. Instead, the Constitutional Treaty only mentions demographic and geographical criteria in relation to the composition of the Commission.

despite the aforementioned statement regarding domestic violence, which has no legal value, a suitable legal basis to combat all forms of violence against women and children has not been included.

Unfortunately, once again, the member states and political groups – except for the socialists and the greens – operated based on the patriarchal structures of society and ignored their declared principles and commitments to gender equality in all areas.

The Modernization of Directive 207 of 1976 – Implementation of 2002/73/EC

For equality in employment and equal pay, the Committee on Women’s Rights of the European Parliament insisted particularly, as it considers it unacceptable for pay inequalities to exist, in defiance of all European laws. For this reason, it strongly supported the European Commission’s campaign for equal pay, which was one of the priorities of the Belgian Presidency in the Fall of 2001, as well as the revision of Directive 207/76.

The modernization of Directive 207, which dated back to 1976, regarding the equal treatment of men and women in access to employment, vocational training, and promotions, was a landmark in promoting equal treatment of women and men in the workplace. After the revision, the Directive better reflects developments in society, labor relations, and family circumstances. For the first time, an agreement was reached at the EU level regarding the definition of sexual harassment. The Directive defines the concepts of “direct discrimination,” “indirect discrimination,” and “harassment.” The new Directive prohibits discrimination against women due to pregnancy or maternity leave and provides for the right to return to the same or an equivalent position after maternity, paternity, or adoption leave. Member States undertook commitments within the framework of implementing the Directive by the end of 2005:

To establish monitoring bodies for equality, whose responsibilities will include the promotion, analysis, monitoring, and support of equal treatment.

Employers and those responsible for vocational training should take proactive measures against gender discrimination, particularly against harassment and sexual harassment.

Substantive measures-sanctions for violations of the directive should be established, according to which compensations cannot be limited in advance to a predetermined limit – except in very specific cases.

To promote equal treatment in the workplace in a planned and systematic way and with the preparation of reports by businesses and regular updates.

Individuals who support victims of gender discrimination and harassment should enjoy the same protection.

The member states shall report every four years to the European Commission on the measures they have taken to provide specific advantages to the underrepresented gender.

The member states ensure the amendment or cancellation of the provisions of contracts or agreements that conflict with the Directive.

The European Institute for Gender Equality

In June 2004, the European Council expressed its support for a long-standing and persistent request from the European Parliament for the establishment of a European Institute for Gender Equality and asked the Commission to submit a related proposal. It was deemed necessary to create an organization that would operate as a center of excellence at the European level, be an independent service, and possess the necessary expertise to provide technical support to the EU institutions and the member states.

On March 8, 2005, the Commission submitted the Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of the Institute (COM 2005-81 final). The Institute will start operating one year after the Regulation comes into force, provided that it is approved by the Council.

CONCLUSION

Without a doubt, the EU has a rich legislative work to present regarding gender equality in the labor market, which has largely been incorporated into national legislations and policies. However, it is unacceptable, after so many years of community action, that there are still discriminations and inequalities against women. It is demonstrated, therefore, that ensuring equality requires a multidimensional approach that includes a combination of policy measures across all sectors. Unfortunately, the implementation of the gender mainstreaming strategy has encountered significant difficulties as it is treated as “everyone’s responsibility, but no one’s job.”

Gender equality and the integration of the gender dimension in all policies relate to providing women with equal opportunities in society, education, the economy, the labor market, and central and local political authority bodies. They also concern a fair distribution between the two genders of all responsibilities and obligations in public and private life. Ultimately, they pertain to the respect for the fundamental freedoms and rights of half of the population of Europe, relating to the democratic values upon which the EU is founded.

BIBLIOGRAPHY

European Parliament, 2004, Update, Directorate-General for Internal Policies-CM536842-29.6.2004

European Commission, 2005 – Proposal for a Regulation of the European Parliament and of the Council, concerning the establishment of a European Institute for Gender Equality COM (2005)81 – Brussels, 8.3.2005

Stratagaki, Maria, 2005, European Journal of Women’s Studies, «Gender Mainstreaming vs Positive Action»

Lombardo, Emanuela, 2003 Paper for the ECPR Conference, Marbourg, 18-21/09/2003).

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Draft Treaty for the Establishment of the European Constitution, 18/06/2003

Commissioner’s Group on Equal Opportunities: Gender Democracy in the ^21stCentury, Working paper, GG2(2002)2/2

European Foundation for the Improvement of Living and Working Conditions, Lisbon, 18-19 November 2004, “EMCC Company Network Seminar

European Parliament – Committee on Women’s Rights, 3.5.2004, Announcement to Members, CM/534580EL.doc

Ghilardotti, Fiorella, 2000, Employment: anti-discrimination measures, EQUAL initiative guidelines, Opinion of the Women’s Committee of the European Parliament.

Hautala, Heidi Anneli, 2001, Report of the E.P. Committee of Women´s Rights, on the revision of the Directive 76/207

Kratsa, Rodi, E.P. Report, (COD)A5-0396 Action Programme to promote organizations at European level in the field of equality.

Karamanou, Anna, Brussels 4.3.2003, European Commission Conference “Gender Equality: Europe´s Future”

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06.04.2005

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