Gender Equality Law in the European Union

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Equality between women and men is one of the fundamental principles of the European Union (EU).[1][2] Over the years, the principle of gender equality has been reinforced with legislation, both generic and specific, obliging Member States to ensure equal opportunities and equal treatment for men and women and to combat any form of discrimination on the grounds of gender. European laws have evolved in their nature and scope, with their focus shifting from the protection of individual rights in the 1970s, to the introduction of specific or positive actions addressing the disadvantages experienced by women in the 1980s, to a policy directed toward gender mainstreaming[3] - recognising that existing structures are not gender-neutral but favour one sex or another in a variety of subtle and not so subtle ways - in the 1990s.[4] Most laws in European countries concerning equal pay, maternity leave, sexual harassment or equal access to financial services, amongst others, have been adopted first by the European institutions[5] and new and better EU laws and policies promoting equality and gender mainstreaming are continuously being discussed and implemented.

Contents

Institutional framework

A series of actors collaborate to deliver the objective of gender equality, including the European Commission, the Council and the European Parliament.

The European Commission is the main implementation body within the EU structure, representing the body that proposes new legislation as well as the institution responsible for ensuring that EU law is applied throughout all Member States.[6] The Commission is divided into several departments, known as Directorates-General (DGs).[7] Since 2010,[8] the task area of gender equality has been allocated to Directorate D of the newly created Directorate-General, "Justice" (JUST),[9][10] This task area is further divided into four subunits:

  1. gender equality law;
  2. gender equality between women and men;
  3. the rights of people with disabilities; and
  4. anti-discriminatory practices and coordination of Roma issues.[11]

This gender equality Directorate is charged with the implementation of the Community strategy for equality between women and men[12] and is responsible for ensuring compliance with the EU Directives on equal opportunities for women and men. The Commissioner responsible for gender equality and anti-discrimination is currently Vice-President of the European Commission, Viviane Reding,[13] responsible for justice, fundamental rights and citizenship. Reding has affirmed her commitment "to be a strong Gender Equality Commissioner further strengthening gender equality throughout the Union and in all fields of EU policy. Reducing the gender pay gap, increasing the number of women in decision-making, and combating violence against women will be [...] priorities in this area."[14]

To assist the Commission, there are various entities which have advisory functions. The Advisory Committee on Equal Opportunities for Women and Men is one such body, assisting the Commission in the formulation and implementation of activities aimed at promoting gender equality.[15]The Committee is composed of representatives from ministries and equality bodies in the member states, amongst others, and includes two observers from the European Women's Lobby (EWL) at its committee meetings.[16] The EWL is the largest umbrella organisation of women’s associations in the EU and, as a major actor in the field of gender equality,[17] it follows and seeks to influence the processes of adoption or amendment of EU gender equality policies and laws at all levels of the legislative process.[5]

Also assisting the Commission is the European Network of Legal Experts in the Field of Gender Equality,[18] which ensures that the Commission is regularly informed of important legal developments in the field of gender equality in the Member States. Since 1984, the network has been assisting the Commission in terms of monitoring implementation of the gender equality acquis throughout EU member states and in relation to the development of new legal initiatives in this field. The network is made up of independent experts, academics and practitioners who are newly appointed every three years from the 27 EU member states, EFTA countries and the candidate countries.[19]

The Commission submits its proposals to the Council of the European Union and Parliament. The vast majority of laws are now subject to the ordinary legislative (or co-decision) procedure, which works on the principle that consent from both the Council and Parliament are required before a law may be adopted.[20] The Council of the European Union (also referred to as "Council of Ministers") consists of members of government of the Member States. The Employment, Social Policy, Health and Consumer Affairs Council (EPSCO), where national ministers of employment, social affairs, health and consumer affairs are represented, is the Council that is responsible for most decisions relating to gender equality.[21] Similarly, the work of the European Parliament (EP), the only European institution elected directly by the citizens of the Member States, is organised in different parliamentary Committees, including the Women's Rights and Gender Equality Committee (FEMM).[22] This Committee drafts reports on the Commission’s proposals on women’s rights, organises public hearings and defines budget priorities for women’s programmes.

Last but not least, the interpretation and the application of EU law and the treaties are ensured by the Court of Justice of the European Union which plays a very important role in the field of equal treatment between men and women, in ensuring that individuals can effectively invoke and enforce their right to gender equality.

Other entities which are to some or a lesser extent involved or influential in the formulation and monitoring of EU gender law include the following:

EU gender equality law

Treaty provisions

The European Union is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU member countries.[24] As the primary source of law, the treaty law of the European law is important because it lays the foundations for its policy on gender equality amongst others.

In the Treaty of Rome, that is, the Treaty establishing the European Economic Community (EEC),[25] adopted in 1957, only one single provision (Article 119 EEC Treaty; the latter of which became Article 141 EC Treaty upon the entry into force of the Treaty of Amsterdam in 1999; and presently Article 157 of the the Treaty on the Functioning of the European Union (TFEU)) was included to combat gender discrimination on grounds of sex, namely the principle of equal pay between men and women for equal work or work of equal value. The purpose behind this provision was originally purely economic - Member States wanted to eliminate distortions in competition that could have arisen from cheaper female labour in different Member States,[26] though, in practice, Member States were unable or unwilling to transpose the equal-pay provision into their national laws, and its implementation only became a priority with the agreement of a social programme in 1974[27] and upon the adoption of a new the Directive on equal pay for men and women (75/117).[28]

With the entry into force of the Treaty of Amsterdam in 1999,[29] the promotion of equality between men and women throughout the European Community became one of the essential tasks of the Community (former Article 2 EC). Furthermore, the Treaty introduced the obligation of gender mainstreaming so that both the Community and the Member States became obliged to actively take into account the objective of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies and activities.(See also Article 29 of the Recast Directive below).

The Treaty of Lisbon, which entered into force on the 1st of December 2009, brought about further developments in EU gender law. With several enhancements to the social dimension of the European Union, the Treaty further emphasizes the importance of the principles of non-discrimination and equality as fundamental principles of EU law. Since the entry into force of the Lisbon Treaty, Article 10 TFEU specifies that "in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation". In addition, Article 19 TFEU provides a legal basis to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Most importantly, the Lisbon Treaty inserts a reference to the Charter of Fundamental Rights of the European Union[30] into Article 6 of the Treaty on European Union (TEU), making this charter legally binding.[31] This Charter, amongst other things, prohibits discrimination on any ground, including sex (Article 21); it recognizes the right to gender equality in all areas, thus not only in employment, and the necessity of positive action for its promotion (Article 23). Furthermore, it also defines rights related to family protection and gender equality. The reconciliation of family/private life with work is an important aspect of the Charter; the Charter guarantees, inter alia, the right to paid maternity leave and to parental leave (Article 33).

Directives

The aims set out in the EU treaties are achieved by several types of legislative acts, including regulations, directives, recommendations and opinions, that go into more detail about the goals that the Member States have agreed on in the treaties. A "directive" is a legislative act that sets out a goal that all EU countries must achieve. However, it is up to the individual countries to decide how.[32] In the field of gender equality there are a number of joint directives:

  • the Directive on equal pay for men and women (75/117);[28]
  • the Directive on equal treatment of men and women in employment (76/207, as amended by Directive 2002/73);[38][39]
  • the Directive on equal treatment of men and women in occupational social security schemes (86/378, as amended by Directive 96/97);[40][41]
  • the Directive on the burden of proof, generally establishing that the burden of proof in cases of sex discrimination lies on the employer (97/80);[42]

The Recast Directive had to be implemented by 15 August 2008 and the directives which are brought together in this Directive (Directives 75/117; 76/207, as amended by Directive 2002/73; 86/378, as amended by Directive 96/97; and 97/80) were repealed one year later (Article 34).

See also

References

  1. See: Europa website. "Equality between men and women". Retrieved 17 September 2012.
  2. See: European Commission. "Gender Equality". Retrieved 17 September 2012.
  3. Gender Kompetenz Zentrum. "History of Gender Mainstreaming at international level and at EU level". Retrieved 26 September 2012.
  4. European Commission: Employment & European Social Fund (2004). [ec.europa.eu/employment_social/equal/data/.../gendermain_en.pdf "EQUAL Guide on Gender Mainstreaming"]. Retrieved 26 September 2012.
  5. 5.0 5.1 European Women's Lobby (11 June 2010). "EU Gender Equality Policies and Legislation". Retrieved 17 September 2012.
  6. European Commission. "Basic facts". Retrieved 1 October 2012.
  7. European Commission. "Departments (Directorates-General) and services". Retrieved 1 October 2012.
  8. Prior to 2010 there was the "Equal Opportunities Unit" which was based in the DG for Employment, Social Affairs and Equal Opportunities (EMPL).
  9. European Commission. "Departments (Directorates-General) and services". Retrieved 1 October 2012.
  10. European Commission. "European Commission Directorate-General for Justice". Retrieved 1 October 2012.
  11. Europa website. "Directorate D - Equality". Retrieved 1 October 2012.
  12. European Commission. "Documents: Strategy for equality between women and men". Retrieved 1 October 2012.
  13. European Commission. "Viviane Reding". Retrieved 1 October 2012.
  14. European Commission. "Viviane Reding: My mandate". Retrieved 1 October 2012.
  15. European Commission. "Advisory Committee on Equal Opportunities for Women and Men". Retrieved 1 October 2012.
  16. Europa website. "Advisory Committee on Equal Opportunities for Women and Men". Retrieved 1 October 2012.
  17. European Women’s Lobby (EWL). Retrieved 1 October 2012.
  18. European Commission. [http://ec.europa.eu/justice/gender-equality/tools/legal-experts/index_en.htm "Network of legal experts"]. Retrieved 1 October 2012.
  19. Gunda Werner Institute. [http://www.gwi-boell.de/web/eu-gender-politics-institutions-eu-commission-3055.html#contents "Institutions of the EU Commission and Parliament". Retrieved 2 October 2012.
  20. European Parliament. "Ordinary legislative procedure". Retrieved 1 October 2012.
  21. Council of the European Union. "Employment, Social Policy, Health and Consumer Affairs Council (EPSCO)". Retrieved 1 October 2012.
  22. European Parliament. "Women's Rights and Gender Equality". Retrieved 1 October 2012.
  23. For more information, see: Gunda Werner Institute. [http://www.gwi-boell.de/web/eu-gender-politics-institutions-eu-commission-3055.html#contents "Institutions of the EU Commission and Parliament". Retrieved 2 October 2012.
  24. Europa website. "EU Treaties". Retrieved 1 October 2012.
  25. Europa website. "Treaty establishing the European Economic Community, EEC Treaty (Treaty of Rome/TEEC)". 25 March 1957, 298 U.N.T.S. 3. Retrieved 17 September 2012.
  26. Burri, S. and Prechal, S. (European Network of Legal Experts in the field of Gender Equality) (2010). "EU Gender Equality Law - update 2010". Luxembourg: Office for Official Publications of the European Communities. Available at: ec.europa.eu/.../gender-equality/.../dgjustice_eugenderequalitylaw. Retrieved 1 October 2012.
  27. Europa website. Council Resolution of 21 January 1974 concerning a social action programme. OJ C 13, 12.2.1974, p. 1–4. Retrieved 17 September 2012.
  28. 28.0 28.1 Europa website. Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. OJ L 45, 19.2.1975, pp. 19–20. Retrieved 17 September 2012.
  29. [www.europarl.europa.eu/topics/treaty/pdf/amst-en.pdf The Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts]. Signed on 2 October 1997, and entered into force on 1 May 1999. Official Journal C 340, 10 November 1997. Retrieved 17 September 2012. The Amsterdam Treaty made substantial changes to the Maastricht Treaty, which had been signed in 1992.
  30. European Union (7 December 2000).[www.europarl.europa.eu/charter/pdf/text_en.pdf "Charter of Fundamental Rights of the European Union"]. Official Journal of the European Communities, 18 December 2000, C 364/01. (2000/C 364/01). Retrieved 1 October 2012.
  31. Nevertheless, a protocol added to the Treaty, concedes that the Charter does not create rights enforceable in Poland or the United Kingdom (UK). In the case of the UK, the British government had particular reservations with regard to the social and labour rights of Title IV (Solidarity) of the Charter. While Poland declared its support for this part of the Charter, it had serious reservations concerning the sphere of public morality and family law.
  32. Europa website. "Regulations, Directives and other acts". Retrieved 17 September 2012.
  33. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security. OJ L 6, 10.1.1979, pp. 24–25. Retrieved 2 October 2012.
  34. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC). OJ L 348, 28.11.1992, pp. 1–8. Retrieved 2 October 2012.
  35. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. OJ L 303, 2.12.2000, p. 16–22. Retrieved 2 October 2012.
  36. Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. OJ L 373, 21.12.2004, pp. 37–43. Retrieved 2 October 2012.
  37. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). OJ L 204, 26.7.2006, pp. 23–36. Retrieved 2 October 2012.
  38. Council Directive 76/207/EEC of 9 February 1976 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. OJ L 39, 14.2.1976, p. 40–42. Retrieved 2 October 2012.
  39. Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council 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. OJ L 269, 5.10.2002, pp. 15–20. Retrieved 2 October 2012.
  40. Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes. OJ L 225, 12.8.1986, p. 40–42. Retrieved 2 October 2012.
  41. Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes. OJ L 46, 17.2.1997, pp. 20–24. Retrieved 2 October 2012.
  42. Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. OJ L 14, 20.1.1998, p. 6–8. Retrieved 2 October 2012.
  43. Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC. OJ L 68, 18.3.2010, pp. 13–20. Retrieved 2 October 2012.
  44. Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. OJ L 145, 19.6.1996, pp. 4–9. Retrieved 2 October 2012.
  45. Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC. OJ L 180, 15.7.2010, pp. 1–6. Retrieved 2 October 2012.
  46. Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood. OJ L 359, 19.12.1986, pp. 0056 - 0058. Retrieved 2 October 2012.

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