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Select Committee on European Legislation First Report


EQUAL TREATMENT FOR MEN AND WOMEN:  KALANKE

6.   We have given further consideration to the following on the basis of further information from the Government. We maintain our opinion[8] that they raise questions of legal and political importance, but make no recommendation for their further consideration at this stage:--

DEPARTMENT FOR EDUCATION AND EMPLOYMENT

(17171)
7061/96
COM(96)88		       Commission Communication on the interpretation of the judgement
      of the Court of Justice on 17 October 1995 in Case C-450/93,
      Kalanke v Freie Hansestadt Bremen.
(17228)
7147/96
COM(96)93		       Draft Directive 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.
Legal base:       Article 235; unanimity.

        6.1  On 3 July 1996, when we considered these two documents, we concluded that important legal and political questions had been raised by the ruling of the European Court of Justice (ECJ) on the Kalanke case and the Commission's proposed amending Directive. We also noted that there was a significant difference of view in the interpretation of the ECJ ruling by the European Commission on the one hand and the UK Government on the other. Before deciding whether to recommend a debate we put a number of questions to the Government.

        6.2  In a letter dated 9 October the Minister of State at the Department for Education and Employment (Lord Henley) has replied to these questions as follows:

          "1.In the light of the Kalanke judgement, is there any need to amend the Equal Treatment Directive in order to clarify the legal position or should any uncertainties be left to the courts to resolve?

          "In the UK's view, the European Court of Justice has correctly interpreted the purpose and scope of the Directive and no amendment is therefore necessary. The UK Government would argue that the Equal Treatment Directive clearly sets out the principles to be applied in promoting equality of opportunity between men and women, but rightly reserves to Member States the application of the Directive according to national practice and custom. What the Directive does not provide for is the promotion of one sex to the detriment of the other and hence the Kalanke case and judgement.

          "2. What will be the effect of the clarifications proposed by the Commission?

          "You will recall that the Commission's proposed clarification of the ECJ's judgement aims to reverse the Court's interpretation of Article 2(4), and in so doing provide for reverse discrimination, although this was neither the intention nor purpose of Article 2(4). The Commission maintains it is merely clarifying the court's judgement but we believe it is relying heavily on selected extracts. Our reading is that the Court was opposing positive discrimination at the point of selection but allowing a range of measures such as training, which are designed to promote equality of opportunity; and remain of the view that we do not think the proposed amendment [should go] beyond that by allowing positive discrimination on selection.

          "I will deal with your third question and the related point raised in paragraph 3.14 together.

          "3. Is the proposed Directive permissive or mandatory? If it is intended to be permissive, why does the Government wish to maintain its objection to the amendment which would allow other Member States to adopt what they might consider to be helpful clarification of the law?

          "As Eric Forth said in his EM of 24 June, the terms of Article 1 (which substitutes a new Article 2(4)) might be interpreted as being permissive, ie allowing Member States to change or maintain their law so that the changes proposed are incorporated into domestic UK law. On the other hand, if this is the case, it is hard to understand the mandatory element of Article 2 which requires Member States to comply with the Directive by 1 December, 1998. As yet therefore it is unclear from the current text whether reverse discrimination is to be made permissive or mandatory. My officials and UKREP are continuing to explore this point with the Commission.

          "Should the intention be to allow for the former then the UK has no objections to the proposals, although we would question the Commission's authority to re-interpret an ECJ ruling in this way. If however, the intention is to provide for the latter, the UK could not sign up to any such amendment since UK law does not allow for the favouring of a man or woman because of their sex when it comes to individual decisions about recruitment and promotion. Neither does the UK Government believe that such discrimination would be widely acceptable in the United Kingdom. The Government does not believe that reverse discrimination will further the cause of equal opportunities. It accepts the need to help women progress in certain occupations and to help men progress in others. However, this is best achieved by supplementing the existing law with a range of non-legal measures such as improved access to training and qualifications.

          "We will continue to try to ensure that any text eventually adopted is purely permissive and without obligation on the UK to change its own law."

        Conclusion

        6.3  On the key question of whether the proposed Directive is permissive or mandatory the Minister has not yet been able to provide a clear answer. We thank him for his reply but, until this point has been clarified satisfactorily, we shall not clear the documents.

8.  (17171) 7061/96 and (17228) 7147/96; see HC 51-xxiv (1995-96), paragraph 3 (3 July 1996).  Back

 

© Parliamentary copyright 1996
Prepared 12th November 1996