Select Committee on European Scrutiny Third Report


COM(00) 334

Draft Directive 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.

Legal base: Article 141 EC; co-decision; qualified majority voting
Department: Education and Employment
Basis of consideration: Minister's letter of 4 December 2000
Previous Committee Report: HC 23-xxviii (1999-2000), paragraph 3 (1 November 2000)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


  5.1  There are two main reasons for updating Council Directive 76/207/EEC (the Equal Treatment Directive). The first is to reflect the changes made by the Treaty of Amsterdam — in particular, the extension of Article 119 (now 141) to cover "matters of employment and occupation", instead of, as formerly, equal pay for men and women only. The second is to reflect the judgments (more than 40) given by the European Court of Justice (ECJ) on the interpretation of the Directive.

  5.2  When we last considered this document (in November), we had reservations about some aspects of it. We raised these with the Minister for Employment, Welfare to Work and Equal Opportunities at the Department for Education and Employment (the Rt. Hon. Tessa Jowell), and left the document uncleared. The Minister has now sent us a copy of her letter to Lord Tordoff (who had raised similar concerns on behalf of our sister Committee in the House of Lords) in which she addresses the issues.

The Minister's letter

  5.3  We asked the Minister why the Commission had not taken the opportunity to widen the scope of the proposal to areas other than employment and occupation, by using Article 13 as well as Article 141 as the legal base. In her letter, the Minister reminds us that, while Article 141 operates through qualified majority voting and co-decision, Article 13 uses unanimity and co-operation. She continues:

    "Unfortunately, combining the two would result in an extremely unwieldy procedure, requiring full co-decision with the Parliament, but only allowing the Council to proceed on the basis of unanimity. I am sure that it is, at least in part, in order to avoid the delays inherent in this combination that the Commission prefers to make two separate proposals, and I would support that.

    "I appreciate that you would prefer to widen the current proposal to the same scope as the Race Directive,[15] but I doubt whether it would not [sic] be practicable for the Commission to bring forward what would amount to major revisions of the draft, in a totally new subject area, at this stage. Proposals need to be consulted on externally before being finalised, for example Article 138 of the Treaty places the Commission under an obligation to consult with social partners before bringing forward any legislation in the field of social policy. We would not wish to encourage the Commission to ignore this obligation.

    "I accept your concerns over the possibilities for confusion in other Member States arising from two separate proposals, but agree with you that this is unlikely to be a problem for the UK, as we already have law in these areas. Taken together, I hope you will agree that there is no overriding reason for the Government to press the Commission to revise their recent proposal."

  5.4  Our other key concern related to the number of differences between the draft Directive and the recently agreed Race Directive. We noted that our sister Committee in the House of Lords had sent the Minister a detailed list of the inconsistencies, asked to see her response, and trusted that she would be negotiating for their removal.

  5.5  In her letter, the Minister explains that the current proposal was issued at a point when changes to the Race proposal were still subject to confidential negotiations. She adds:

    "The definition of harassment, upon which your letter comments [pointing out that some provisions in the Race Directive are missing in the current proposal], is a particularly good example of how sensible changes agreed during the course of the Race Directive negotiations could not, because of the timing, be revealed by including them in the gender proposal."

  5.6  The Minister considers, however, that differences between the Directives can be justified in some instances. One example is the definition of indirect discrimination, where the current proposal uses the definition in the Burden of Proof Directive[16] instead of the compromise agreed for the Race Directive. The Minister reminds us that the Government (as well as the scrutiny committees in both Houses) preferred the definition in the Burden of Proof Directive, which was unacceptable to some Member States because their constitutional arrangements did not allow them to collect statistics relating to ethnic origin. This problem does not arise in connection with gender discrimination, and the Government's present view is that there is no need for a compromise definition. The Minister recognises that it could, in some circumstances, be unsatisfactory to have different tests in relation to discrimination on grounds of sex on the one hand, and discrimination on grounds of race, religion or belief, disability, age and sexual orientation on the other, especially while the Courts are establishing how the compromise definition works in practice. She thinks careful consideration about how to alleviate this problem will need to be given during the implementation period.

  5.7  In relation to two other definitions — that for direct discrimination (which is not defined in the current proposal) and that for positive action (which is defined slightly differently in the two Directives) — the Minister admits the anomalies, but does not consider that they will lead to significant difficulties. She agrees to ask the Commission why the draft Equal Treatment Directive does not contain a definition of direct discrimination.

  5.8  The Minister also undertakes to seek clarification of the provisions in the Equal Treatment Directive relating to post-dismissal situations, and to suggest to the Commission that it amend the provisions on victimisation along the lines of those in the Race Directive. She states: "we will be pressing for many of the areas of overlap between this Directive and the Race Directive to be couched in similar terms." The Minister repeats her intention of keeping us informed of progress in her attempts to clarify the way in which the mainstreaming provision in the Directive (which she supports) would work in practice.


  5.9  Faced with these inconsistencies, it is scant comfort that our concerns about the hasty agreement of the Race Directive, and the confidentiality which was such a feature of its negotiation, have so quickly proved justified.

  5.10  We are pleased that the Minister agrees that many aspects of the Equal Treatment Directive would benefit from a more direct comparison with the final version of the Race Directive. We urge her to press for amendments to the current proposal, especially as we are not as confident as she appears to be that the differences of definition will not pose significant difficulties.

  5.11  We do not find the arguments against widening the scope of the current proposal conclusive. Once again, fear of delay appears to take priority over more thought-through procedures. If there are to be two separate measures, we urge the Minister to press for as much consistency as possible between them.

  5.12  We shall keep the document under scrutiny until we know more about progress on the measure generally, and on the items noted in 5.8 above, in particular.

15  (20831) - ; see HC 23-vii (1999-2000), paragraph 4 (2 February 2000) and HC 23-xix (1999-2000), paragraph 2 (24 May 2000).  Back

16   Directive 97/80/EC. Back

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