8. We consider that the following raises questions of legal and political
importance, but make no recommendation for its further consideration:--
Department of Social Security
(17748)
11882/96
COM(96)605 |
Amended draft Directive 86/378/EEC on equal treatment for men and women
in occupational social security schemes. |
| Legal base: |
Article 100; unanimity. |
Introduction and Scrutiny history
8.1 On 6 December 1995 we cleared an earlier draft of this amending Directive[16]. On 2 December 1996 the Social Affairs Council considered
several Commission amendments, including clarification which the Government considered necessary
but did not regard as affecting policy, and did not submit for Scrutiny. The Council agreed that
some of these amendments should be incorporated in the draft and formally adopted the texts at its
20 December meeting.
8.2 In late November the Commission also put forward an amended version of the
proposal which incorporated amendments suggested by the European Parliament in its Opinion. This
document is the one considered here.
8.3 In a letter (dated 12 December) the Minister of State at the Department for
Education and Employment (Lord Henley) informed us that the proposal had been agreed unanimously.
We have subsequently established that he was referring to the version which incorporated the
Commission's own proposed amendments. However, in his Explanatory Memorandum (dated 8 January 1997)
on the document under consideration, the Parliamentary Under-Secretary of State at the Department
of Social Security (Mr. Andrew Mitchell) says that the 20 December Council agreed to the
incorporation of two minor EP amendments and adopted the document. He makes no mention of the fact
that the document had not been seen by us at that time.
The document
8.4 The aim of the proposal is to amend Directive 86/378 following several
interpretative rulings by the European Court of Justice (ECJ). Its judgement of 17 May 1990 in the
case of Barber v. Guardian Royal Exchange Assurance[17]
was the most important and caused much uncertainty. In a number of subsequent cases, the ECJ
has sought to clarify the implications of the Barber judgement. The effect of these rulings
was to demonstrate that certain provisions of the Directive were incompatible with Article 119 of
the Treaty, which is overriding and has direct effect. The proposed revision of this Directive is
designed to bring it into line with Article 119, as interpreted by the ECJ in these cases.
The EP amendments
8.5 Several amendments were no more than clarifications. These include the two which
were accepted by the Council:
Amendment No. 1 specifically adds that "the atypical nature of the job", should
not be a basis for discrimination.
Amendment No. 5 proposes the addition of a new paragraph concerning flexible pensionable
age.
8.6 Other amendments proposed, but rejected by the Council, included two proposing
that it should be made clear that the Directive applies to periods of paid leave.
The Government's view
8.7 In his Explanatory Memorandum, the Parliamentary Under-Secretary of State says
that the Government agrees that the Directive should be updated in the interests of clarity and
legal certainty. He considers the two amendments suggested by the EP which were accepted by the
Council to be unnecessary, but do not require further action from the Government if left in place.
Conclusion
8.8 The Government has, in this case, agreed to a document which had been
deposited, but on which no EM had been submitted. The EM of 8 January should have been provided
before the Social Affairs Council on 2 December, and certainly before the proposal was agreed as
an 'A' point on 20 December. We expect information to be provided in advance of such decisions in
future. We also ask both Ministers involved to ensure that, in future, if agreement is given to
a proposal which has not been cleared, the reasons should be explained to us at the first
opportunity.[18]
8.9 The amendments agreed to are not of major significance and we clear the
document.
16.(16317) 8432/95; see HC 51-iii (1995-96), paragraph 5. Back
17.Case 262/88. Back
18. Resolution of the House of 24 October 1990. Back
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