Select Committee on European Scrutiny Twelfth Report


ANNEX 3

European Parliament (EP)Amendments European Commission's formal Opinion on
EP Amendments
UK response to proposed Parliamentary
changes to theCommon Position
Amendment 1 - Recital 8a (new)
Recital and Article on preventative measures for
sexual harassment
  
Member States should introduce into their
national legal systems measures obliging those
responsible for access to training, employment or
occupation to take preventative measures against
harassment and sexual harassment in the
workplace, which may include a confidential
counselling service.
Accepted. The Commission partly accepts the
introduction of preventive measures
byreformulating the text to encourage employers:
  
Member States shall take the necessary measures
to encourage employers to prevent sexual
harassment at the workplace in accordance with
national law, collective agreements or practice.
UK has always favoured the definition of
harassment in the Article 13 Race and
Employment Directives, as it is a more objective
standard (both "conduct and an offensive
environment" v. "conduct or an offensive
environment").
We should not concede on "Member States shall
¼ introduce measures to prevent harassment ."
as it imposes an unidentifiable obligation on
Member States.
Preventative action on vicarious liability could
result in considerable burden on business. Both the
Commission and Member States share our view on
this.
Amendment 2 - Recital 16
Protection after employment relationship has
ended
  
The Court of Justice has ruled that, having regard
to the fundamental nature of the right to effective
judicial protection, employees enjoy such
protection even after the employment relationship
has ended. Anyone defending, or attesting on
behalf of, a person who considers her/himself a
victim of discrimination should also enjoy the
same protection.
Not accepted as it is an extension of the post
employment judicial protection and is considered
as inoperable in practice.
We should follow the Common Position text
which would enable us to implement the Directive
in line with the position we took in the
Consultation paper.
Amendment 3 - Article 1.1 (new)
Reference to Article 2 and 3 of Treaty
  
In accordance with Articles 2, 3(2) and 141 of the
Treaty, the purpose of this Directive is to put into
effect in the Member States the principle of equal
treatment for men and women as regards access
to employment, including promotion, and to
vocational training and as regards working
conditions and, on the conditions referred to in
para.. 2, social security, this principle is
hereinafter referred to as "the principle of equal
treatment".
Not accepted on the grounds that a reference to
Articles 2, 3 and 141 is inappropriate because
their scope is broader than that of the Directive.
We should support the Commission's view on this
and agree that introducing Article 2 and 3 will
broaden the scope of the Directive.
Amendment 4 & 5 - Article 1.2
Definitions of direct and indirect
discrimination and harassment and sexual
harassment
  
Article 1a:
-    direct discrimination: the situation where one
            person is treated less favourably
            on grounds of sex than another
            is, has been or would be treated
            in a comparable situation.
-    indirect discrimination: the situation 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.
-    harassment: the situation where an unwanted
            conduct related to the sex of a
            person occurs on the occasion of
            access to or at the place of
            employment, occupation or
            training with the purpose or
            effect of violating the dignity of
            a person or of creating an
            intimidating, hostile, degrading,
            humiliating or offensive
            environment.
-    sexual harassment: the situation where any
            form of verbal, non-verbal or
            physical conduct of a sexual
            nature occurs, which the
            perpetrator knows, or is under a
            legal obligation to know, to have
            the purpose or effect of violating
            the dignity of a person or of
            creating an intimidating, hostile,
            degrading, humiliating or
            offensive environment.
  
Article 1b:
Harassment and sexual harassment within the
meaning of this Directive shall be deemed to be
discrimination on the grounds of sex and
therefore prohibited.
A person's rejection of, or submission to, such
conduct shall not be used as a basis for a
decision affecting that person.
An instruction to discriminate against persons on
grounds of sex shall be deemed to be
discrimination within the meaning of this
Directive
Member States shall in their national legal
systems ensure that those responsible for access
to training, employment or occupation, or the
conditions relating thereto, introduce measures to
prevent harassment and sexual harassment in the
workplace.
Amendment 4 (rewording of EP definition for
sexual harassment): not accepted.
Elements by
the EP are inoperable in practice and since there
is a repetition of the same wording of the
previous paragraph on harassment. Definition of
harassment also ensures consistency with Article
13 Directives.
  
Amendment 5: accepted. See amendment 1.
We should support the Commission on this and
follow the Common Position text.
Amendment 6 - Article 1.2.b
GOQ
  
Any general exclusion of, or restriction on, one
sex having access to any kind of professional
activity or to the training required to gain access
to such an activity shall constitute discrimination
within the meaning of this Directive.
Not accepted as it is already implicitly covered
by the Common Position which reflects the case
law of the court in the area of access to specific
activities.
Case law has established that sex may be a
determining factor for certain occupations. We
believe that the latest amendments are excessive
and unclear - for instance, certain areas of the
Armed Forces.
Amendment 7 - Article 1.2.c
Maternity and paternity
  
At the end of her period of maternity leave or
after an absence directly linked to or following an
adoption, a woman shall be entitled to
return to
her job or to an equivalent post on terms and
conditions which are no less favourable to her
and to benefit from any improvement in working
conditions to which she would have been entitled
during her absence.
  
This Directive shall also be without prejudice to
the provisions of Council Directive 96/34/EC of 3
June 1996 on the framework agreement on
parental leave concluded by UNICE, CEEP and
the ETUC and of Council Directive 92/85/EEC of
19 October 1992 on the introduction of measures
to encourage improvements in the safety and
health at work of pregnant workers and workers
who have recently given birth or are
breastfeeding (tenth individual Directive within
the meaning of Article 16(1) of Directive
89/391/EEC). It is also without prejudice to the
right of Member States to recognise a distinct
right to paternity leave. Those Member States
which recognise such a right shall take the
necessary measures to protect working men
against dismissal due to exercising that right and
ensure that, at the end of such leave, they shall be
entitled to return to their jobs or to equivalent
posts on terms and conditions which are no less
favourable to them, and to benefit from any
improvement in working conditions to which they
would have been entitled during their absence.
  
Any unequal treatment of a woman related to
pregnancy or maternity shall constitute
discrimination within the meaning of this
Directive.
Not accepted. The Commission would rather see
questions on the reconciliation of work and
family life to be dealt within the context of a
broader approach concerning the Parental Leave
Directive.
UK acknowledges the need to assist parents but
has opted to keep this concept out of a Directive
about sex discrimination. The permissive wording
on paternity leave is acceptable but there are
concerns over the "unequal treatment related to
maternity" - not on maternity leave - and to
"women and adoption leave". Both the
Commission and Member States support our
position.
Amendment 8 - Article 1.2.d
Positive action measures
  
Article 2a
Member States may maintain or adopt positive
measures with in the meaning of Article 141 (4)
of the Treaty with a view to ensuring full equality
in practice between men and women. Positive
measures shall provide for specific advantages in
order to make it easier for the under-represented
sex to pursue a vocational activity, or to prevent
or compensate for disadvantages in professional
careers.
Accepted in part that a description of positive
measures could be given in the recitals providing
the wording of the Treaty is respected.
Not opposing this. The proposal is confusing to
some extent, nevertheless, permissive for Member
States.
Amendment 9 - Article 1.3
Collective agreements
  
Any provisions contrary to the principle of equal
treatment which are included in contracts or
collective agreements, internal rules of
undertakings or rules governing the independent
occupations and professions and workers' and
employers' organisations shall be declared null
and void.
Accepts that nullity should be obligatory but
rejects the removal of the possibility for
amendment for the contract.
Not opposing this. It involves strengthening the
Common Position by "shall" which is not a crucial
area for the UK.
Amendment 10 - Article 1.5
Compensation or reparation
  
Member States shall introduce into their national
legal systems such measures as are necessary to
ensure effective, proportionate and dissuasive
sanctions in case of breaches of the obligations
under this Directive.
Compensation or reparation
for the loss and damage sustained by a person
injured as a result of unequal treatment contrary
to this Directive shall be real, effective and
proportionate to the damage suffered, and may
not be restricted by the fixing of a prior upper
limit.
Not accepted on the grounds that the Common
Position reflects the case law of the Court on
sanctions as well and other relevant cases where
limits may not be fixed a priori.
The Common Position text referring to
compensation or other sanctions is preferable.
Other Member States appear to support UK view
on this, but the distinction between compensation
and sanctions is not easily understood by some
Member States who have different redress
systems. Wording promoting punitive regimes
would not be acceptable.
Amendment 11 - Article 1.5
Representative actions
  
Member States shall ensure that associations,
organisations or other legal entities which have a
legitimate interest in ensuring compliance with
the provisions of this Directive:
  
(a) may engage, either on behalf or in support of
the complainant(s), with her, his or their
approval, in any judicial and/or administrative
procedure provided for the enforcement of
obligations under this Directive,
  
(b) may, where national law so permits, bring a
collective action, in any judicial and/or
administrative procedure, on their own initiative
and aside from the particular circumstances of an
individual case, in order to determine whether or
not the principle of equal treatment for men and
women is applied.
Not accepted, as it goes beyond the legal base of
the Directive.
It would be useful that proposed changes insert
"where national law so permits". We would not
though accept "collective actions" except under
the UK regime and would not accept that
theoretical cases can be brought "aside from the
circumstances of a particular case". Other Member
States also share our view.
 
Amendment 12 - Article 1.6
Victimisation
  
Member States shall introduce into their national
legal systems such measures as are necessary to
protect employees and workers' representatives
against dismissal or other adverse treatment by
the employer as a reaction to a complaint within
the undertaking or to any legal proceeding aimed
at enforcing compliance with the principle of
equal treatment.
Not accepted on the grounds that workers'
representatives are employees covered by the
Common Position text.
Not opposing this amendment. UK law covers this
category of individual such as workers'
representatives.
Amendment 13 - Article 1.7
Role of independent bodies
  
Member States shall designate a body or bodies
for the promotion, monitoring and follow-up of
the principle
of equal treatment of all persons
without discrimination on the grounds of sex.
These bodies may form part of agencies charged
at national level with the defence of human rights
or the safeguard of individuals' rights. They must
have the funding and human resources necessary
to accomplish their task. The scope of these
bodies shall cover all Community law in the field
of equal treatment for men and women.
Member States shall ensure that the competences
of these bodies include:
(a) without prejudice to the right of victims and
of associations, organisations or other legal
entities referred to in Article 6(3), receiving,
examining and pursuing complaints from
individuals, groups of individuals and
organisations
about discrimination.
Accepted. Agrees with EP in that the role of
these bodies should be strengthened to include
promotion, monitoring and follow-up
. However
it does not agree with the amendment in respect
of "funding" which the Opinion says is not
covered by the legal base.
UK cannot accept the Directive wording trying to
dictate the funding which should be given to the
EOC or which allow it to bring cases in lieu of an
individual. We agree with the Commission's view
in that the role of independent bodies should be
strengthened. The Equal Opportunities
Commission (EOC) in the UK already promotes,
monitors and follows up the principle of equal
treatment.
Amendment 14 - Article 1.7
Equality plans at company level
  
Member States shall take all necessary measures
to ensure that employers promote equal treatment
for men and women in the workplace in a planned
and systematic way.
To this end, Member States shall encourage
employers to provide annually appropriate
information to workers and/or their
representatives about equal treatment for men
and women in the undertaking. Such information
shall include statistics on proportions of men and
women at different levels of the organisation and
possible measures to improve the situation in co-
operation with workers' representatives.
Accepted. The Commission agrees in principle
with the EP, but suggests a reformulation of
Article 8b to read:
Member States shall take all necessary measures
to encourage employers to promote equal
treatment for men and women in the workplace
ina planned and systematic way.
To this effect, Member States shall encourage
employers to provide appropriate information to
existing worker representative bodies about
equal treatment for men and women in the
undertaking. This information may include
statistics on proportions of men and women at
different levels of the organisation and possible
measures to improve the situation.
The proposal would require Member States to
create a legal duty on employers to promote equal
treatment and to report on their actions. This
would result in an increased burden on business
and Member States in addition to creating
considerable legal uncertainty as to whether "all
necessary measures" are in place. Other Member
States support the UK view that this is not
acceptable.
Amendment 15 - Article 2.3
Reporting on positive measures
Without prejudice to paragraph 2, Member States
shall communicate to the Commission, every two
years, the texts of laws, regulations and
administrative provisions of any measures
adopted pursuant Article 141 (4) of the Treaty, as
well as reports on these positive measures and
their implementation
. On the basis of that
information, the Commission will adopt and
publish every two years a report establishing a
comparative assessment of any measures in the
light of Declaration No 28 annexed to the Final
Act of the Treaty of Amsterdam
.
Accepted. But time period not accepted.
Proposed a compromise of a three-year period.
UK content to report to the EC but measures need
time to work. UK can negotiate a compromise
between the 2 years proposed by the EP and
Common Position's 5 years requirement.




 
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