Lecture Week 3
Equal treatment in employment
The origin of the provisions on equal treatment
In EEC Treaty (1957) only one article on equal treatment: article 119 EEC (equal pay for equal
work for men and women). Now this is embodied in article 157 TFEU. Reasons of the
legislature for this non-discrimination rule: prevention of unfair competition between the
countries. It all started with an economic reason.
Interpretation of article 119 (old)
Defrenne: air hostess working for a Belgium air company. Women were dismissed from their
job at the age of 40, while this did not apply to men. Mrs. Defrenne challenged this dismissal
by saying that she received a lower dismissal wage than men. She had to rely on
discrimination articles on pay.
- Defrenne II judgment (1976): article 119 EEC (now 157 TFEU) has an economic and a
social objective (in view of its place in the treaty)
o Economic: avoid competition between member states on the basis of wages
o Social: art. 119 is in the chapter on social policy and has the objective to make
sure that men and women get paid the same.
- Therefore: equal treatment is a community principle
- Consequently: art. 119 EEC has direct effect
o Otherwise member states will try to avoid this provision
o From 1963 on (this has to do with the implementation period of 6 years)
- Article 119 also has horizontal effect
o Horizontal effect mostly for political reasons, because member states will
otherwise try to escape from this provision
- Wage = all advantages in cash and kind which are paid now or in the future on the
basis of the employment relationship
o Also, things like benefits or pension is included in this definition
o It is a quite broad interpretation
Indirect discrimination
- Article 119 also prohibits indirect discrimination (case Bilka)
o Definition of indirect discrimination: “where an apparently neutral provision,
criterion or practice would put persons of one sex at a particular disadvantage
compared with persons of the other sex, unless that provision, criterion or
practice is objectively justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary (art. 2(1)(b) Recast
directive)
- Bilka
o For an objective justification the employer:
o (i) has to put forward objective economic grounds relating to the management
of the undertaking -> legitimate aim
o (ii) has to make sure that the pay practice is necessary to reach the objective
of the enterprise
, o (iii) must not go beyond what is necessary to achieve the objectives pursued
by the employer (proportionality)
- Example from the Bilka case
o The disputed scheme
Part-time employees may obtain pensions under the scheme only if
they have worked full time for at least 15 years over a total period of
20 years
Objectivation presented by Bilka
In its observations Bilka argued that the exclusion of part-time
workers from the occupational pension scheme is intended
solely to discourage part-time work, since in general part-time
workers refuse to work in the late afternoon and on Saturdays.
In order to ensure the presence of an adequate workforce
during these periods it was therefore necessary to make full-
time work more attractive than part-time work by making the
full-time pension scheme open only to full-time workers.
The present directive on non-discrimination on ground of sex
- Directive 2006/54: Equal Treatment in Employment and Occupation (Recast Directive)
o In order to enhance the transparency, clarity and coherence of the law, in
2006 this directive was adopted putting the existing provisions on equal pay,
occupational schemes and the burden of proof into a single text.
o This directive included a lot of case law from the Court of Justice.
Equal Treatment in Employment and Occupation
directive
This directive is only related to equal treatment in employment. Only employment is the area
to which this directive applies.
- Structure:
o Title I: definitions
o Title II
Chapter 1: prohibition of discrimination
Chapter 2: occupational pension schemes
Chapter 3: equal treatment as regards access to employment,
vocational training and promotion and working conditions
o Title III: remedies/enforcement/burden of proof/compliance
- Article 14 prohibits direct and indirect discrimination as regards access to
employment, vocational training and promotion and working conditions.
Discrimination is forbidden as regards:
o Access to work
o Vocational guidance
o Employment and working conditions
o Membership of trade unions or employers’ organizations
Equal treatment in employment
The origin of the provisions on equal treatment
In EEC Treaty (1957) only one article on equal treatment: article 119 EEC (equal pay for equal
work for men and women). Now this is embodied in article 157 TFEU. Reasons of the
legislature for this non-discrimination rule: prevention of unfair competition between the
countries. It all started with an economic reason.
Interpretation of article 119 (old)
Defrenne: air hostess working for a Belgium air company. Women were dismissed from their
job at the age of 40, while this did not apply to men. Mrs. Defrenne challenged this dismissal
by saying that she received a lower dismissal wage than men. She had to rely on
discrimination articles on pay.
- Defrenne II judgment (1976): article 119 EEC (now 157 TFEU) has an economic and a
social objective (in view of its place in the treaty)
o Economic: avoid competition between member states on the basis of wages
o Social: art. 119 is in the chapter on social policy and has the objective to make
sure that men and women get paid the same.
- Therefore: equal treatment is a community principle
- Consequently: art. 119 EEC has direct effect
o Otherwise member states will try to avoid this provision
o From 1963 on (this has to do with the implementation period of 6 years)
- Article 119 also has horizontal effect
o Horizontal effect mostly for political reasons, because member states will
otherwise try to escape from this provision
- Wage = all advantages in cash and kind which are paid now or in the future on the
basis of the employment relationship
o Also, things like benefits or pension is included in this definition
o It is a quite broad interpretation
Indirect discrimination
- Article 119 also prohibits indirect discrimination (case Bilka)
o Definition of indirect discrimination: “where an apparently neutral provision,
criterion or practice would put persons of one sex at a particular disadvantage
compared with persons of the other sex, unless that provision, criterion or
practice is objectively justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary (art. 2(1)(b) Recast
directive)
- Bilka
o For an objective justification the employer:
o (i) has to put forward objective economic grounds relating to the management
of the undertaking -> legitimate aim
o (ii) has to make sure that the pay practice is necessary to reach the objective
of the enterprise
, o (iii) must not go beyond what is necessary to achieve the objectives pursued
by the employer (proportionality)
- Example from the Bilka case
o The disputed scheme
Part-time employees may obtain pensions under the scheme only if
they have worked full time for at least 15 years over a total period of
20 years
Objectivation presented by Bilka
In its observations Bilka argued that the exclusion of part-time
workers from the occupational pension scheme is intended
solely to discourage part-time work, since in general part-time
workers refuse to work in the late afternoon and on Saturdays.
In order to ensure the presence of an adequate workforce
during these periods it was therefore necessary to make full-
time work more attractive than part-time work by making the
full-time pension scheme open only to full-time workers.
The present directive on non-discrimination on ground of sex
- Directive 2006/54: Equal Treatment in Employment and Occupation (Recast Directive)
o In order to enhance the transparency, clarity and coherence of the law, in
2006 this directive was adopted putting the existing provisions on equal pay,
occupational schemes and the burden of proof into a single text.
o This directive included a lot of case law from the Court of Justice.
Equal Treatment in Employment and Occupation
directive
This directive is only related to equal treatment in employment. Only employment is the area
to which this directive applies.
- Structure:
o Title I: definitions
o Title II
Chapter 1: prohibition of discrimination
Chapter 2: occupational pension schemes
Chapter 3: equal treatment as regards access to employment,
vocational training and promotion and working conditions
o Title III: remedies/enforcement/burden of proof/compliance
- Article 14 prohibits direct and indirect discrimination as regards access to
employment, vocational training and promotion and working conditions.
Discrimination is forbidden as regards:
o Access to work
o Vocational guidance
o Employment and working conditions
o Membership of trade unions or employers’ organizations
