Equality Between Men and Women 1
Equality Between Men and Women 1 : Access to employment, vocational training and promotion: Within the European Union (EU), one of the most important instruments is Directive 2002/73 EC of the European Parliament and the Council of 23 September 2002 amending Directive 76/207 EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. This Directive consolidates the progress that has been made by the case law of the European Court of Justice, notably by the definition of discrimination, harassment and any behaviour consisting in obliging anyone to practice discrimination based on sex. One of its contributions in relation to earlier case law consists of the requirement of setting up an independent body to combat law consists of the requirement of setting up an independent body to combat other discrimination by Directives 2000/43 EC and 2000/78 EC. There were three misgivings regarding the content of Directive 2002/73 EC. First, the notion of indirect discrimination departs from the definition given in Directive 97/80 EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. Whereas the latter Directive stipulated that "indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex", Directive 2002/73 EC defines indirect discrimination - in line with Directives 2000/43 EC and 2000/78 EC - as a situation "where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary". The disproportionate impact of an apparently neutral measure therefore no longer suffices to describe it as indirectly discriminatory. Consequently, the scope of protection against discrimination is restricted. Second, although point 14 of the Preamble of the Directive reads, "Member States may, under Article141.4, TEC, maintain or adopt 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. Given the current situation, and bearing in mind Declaration No. 28 to the Amsterdam Treaty, Member States should, in the first instance, aim at improving the situation of women in working life", the appropriateness of adopting measures of positive action is left to the discretion of the EU Member States. Taking into account the contrasting attitudes adopted on this issue by the States in the north and those in the south, we may regret the absence of harmonization in this area. Third, although according to the new Article 6.2 of Directive 76/207 EEC, the EU Member States must introduce into their national legal systems "such measures as are necessary to ensure real and effective compensation or reparation as the Member States so determine for the loss and damage sustained by a person injured as a result of discrimination contrary to Article 3, in a way which is dissuasive and proportionate to the damage suffered", the nature and importance of the sanctions is essentially left to the discretion of each EU Member State. This may result in a significant variation between Member States. See: Equal treatment; Equal treatment in employment and occupation; Equal treatment for men and women
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