Select Committee on European Scrutiny Thirteenth 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 11 April 2001
Previous Committee Report: HC 23-xxviii (1999-2000), paragraph 3 (1 November 2000) and HC 28-iii (2000-01), paragraph 5 (17 January 2001)
To be discussed in Council: 11 June 2001
Committee's assessment: Legally and politically important
Committee's decision: Cleared


  7.1  The last time we considered this proposal (in February), we did not clear it, urging the Minister to press for amendments which would make it more consistent with the final version of the Race Directive,[5] and asking to be kept informed of progress, both generally and in respect of some specific provisions. The Minister for Education and Employment (Baroness Blackstone) has now written to Lord Brabazon of Tara, addressing our concerns, as well as those raised by our sister Committee in the House of Lords.

The Minister's letter

  7.2  One of our concerns related to the definition of indirect discrimination. The Minister updates us on the Government's view, saying:

    "You will be aware that the two leading options are to use the older definition in the Burden of Proof Directive,[6] or to use the more recent definition in the Article 13 Race and Employment[7] Directives. From the purely gender perspective, there are advantages of continuity in remaining with the Burden of Proof Directive, but from the broader equality perspective, there are advantages of consistency in using a common Article 13 definition. As I said in my earlier letter, the arguments are finely balanced; either option would be acceptable to the UK. However, I have sought the views of key players in the UK about which definition was preferable, and there is a majority (though not unanimous) opinion for the Article 13 definition.

    "In the light of these responses, and the comments of others (including the Scrutiny Committee's own preference for the Article 13 definition) the Government's opinion is that the balance tips in favour of using the Article 13 definition. Whether or not this is something of which we are able to persuade other Member States remains to be seen."

  7.3  The Minister also informs us of the progress she has made in regard to the mainstreaming[8] provisions. She says:

    "The Committee will recollect that I was concerned about the way that the Commission had framed the mainstreaming article, as it was far from clear what we might actually be required to do. The UK has proposed an amendment within the Working Party on Social Questions, which would make clear that the obligation lies upon Member States to mainstream gender into all laws and administrative policies (rather than a general requirement which might have covered all UK employers). This is in line with the Government's commitment, when legislative time permits, to place a duty on the public sector to promote gender equality. This amendment seems to be gaining some support."

  7.4  The Minister tells us that support is also growing for including provisions on direct discrimination and on victimisation in the Directive (two further areas on which we had asked for information). She assures us that the Government is arguing for their inclusion in order to make the protection provided by the Equal Treatment Directive comparable with that provided by the Race Directive, and that it is pressing for consistency between the measures wherever practicable. She does not update us on the provisions relating to post-dismissal situations.       

  7.5  Finally, the Minister reports on the likely timetable for the proposal, and to the Committees' wish to see a revised text. She says:

    "As you are no doubt aware, this dossier is co-decided. The Parliamentary opinion is not now expected before mid-May. This may result in a further depositable text, if the Commission produces a revised text in response to the Parliament's opinion. But the production and content of such a text is entirely within the Commission's gift, and there is no obligation upon them to produce a text. Even assuming that the Commission does so, it is possible that any such text might not reflect all the issues currently being negotiated between the Member States in the Council's working group.

    "Political agreement on a common position is a priority for the Swedish Presidency, and the timetable set by the European Council in Stockholm may strengthen its determination to reach agreement in its June Council. The timetable between the adoption of the Parliament's First Reading Opinion, the possible production of a revised proposal by the Commission and a political agreement on a common position at the June Council is thus likely to be tight.

    "In these circumstances, you may rest assured that I shall do my utmost to keep you updated on progress."


  7.6  We thank the Minister for her helpful letter which has addressed almost all our concerns. We are pleased to learn that the Government now agrees, on balance, that the definition of indirect discrimination should be consistent with that in the Race Directive, and trust that its view, as well as its amendment on mainstreaming, will win the day.

  7.7  We are not at all happy, however, with the information about the tight timetable for this measure. It is far too reminiscent of the situation which arose over both the Race and the Employment Directives. Once again, it appears likely that a final text which differs considerably from the one we have seen will be agreed without our being able to scrutinise it.

  7.8  Given the satisfactory nature of the Minister's response, we clear the document, but with some reluctance. We trust that the Minister will do all she can to keep us informed of progress.

5  (20831) - ; see HC 23-vii (1999-2000), paragraph 4 (2 February 2000) and HC 23-xix (1999-2000), paragraph 2 (24 May 2000).  Back

6   Directive 97/80/EC. Back

7  (20801) 13540/99; see HC 23-vii (1999-2000), paragraph 4 (2 February 2000), HC 23-xix (1999-2000), paragraph 2 (24 May 2000) and HC 23-xxiv (1999-2000), paragraph 1 (12 July 2000).  Back

8  The integration of equal opportunities in all Community and Member State policies and actions. Back

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