The proposal of the European Commission for a recast Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
On 21 April the European Commission adopted a proposal for a Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, COM (2004) 279 (a so-called "recast Directive"). The aim of the Directive is to simplify, modernise and improve Community law by amalgamating in a single text the provisions of certain Directives with related subject-matter, namely: the Equal Pay Directives (75/11/EEC and 86/378/EEC as amended by 96/97/EC); the Directives on equal treatment relating to access to employment, vocational training, promotion and working conditions (76/207/EEC as amended by 2002/73/EC); the Directives on occupational social security schemes (86/378/EEC as amended by 96/97/EC); and the Directive on the burden of proof (97/80/EC).
The Confederation of Danish Employers (DA) is thoroughly committed to promoting equal treatment of women and men with regard to employment and equal pay, and also, naturally, to the elimination of all forms of discrimination in the labour market. It is DA's view that the existing directives on equal treatment are a solid foundation for the achievement of these goals.
DA supports the idea of simplifying and modernising existing directives, as it could help clarify the existing rules.
A compilation of the directives ought, however, to be a purely technical process, and should only be undertaken if it is proved that the existing directives need adjustment; and as things are now, DA sees no reason for changing them. Member states have already taken overlapping or outdated rules into consideration, when implementing the directives, by amending national laws; and we see no need to adopt new rules. Within member states it is the national implementing law, not the directive, which constitutes the primary source of law for individuals - lawyers and citizens.
Instead of recasting the directives, DA proposes that the Commission should draw up guidelines on how the rules should be used.
The draft recast directive includes a long list of new rules and formulations which will lead to new interpretations and create uncertainty about the state of the law. The result will be a long list of cases brought before both national and European Courts. A new directive will require the 25 member states to review their implementing legislation. Thus instead of clarity and certainty, the Commission proposals will give rise to less transparency and more doubts on interpretation and new case law.
DA does not believe that including case law in the directive will make the rules any simpler or more easily accessible. Case law changes over time, and what might be important today may not be important tomorrow. For example, some older judicial decisions will not have the same political weight; other decisions might be extremely specific, and accordingly not be suitable as a basis for a "recasting" process. Even the choice and interpretation of the decisions to be included might lead to new legal norms.
Furthermore, DA questions the importance, relevance and other aspects of the Commission's choice of case law. This applies especially to the comparison of women's and men's situations in terms of equal pay in article 4, where DA is convinced that the European Court of Justice has not moved away from the requirement that two persons must have the same employer as a pre-condition for comparing their pay. The criteria same source as suggested by the Commission is unclear and has not been given a fully interpretation.
Finally, DA takes issue with the timing of this recasting exercise: Denmark and other member states are just about to implement the amending directive (2002/73/EC) into national law. Furthermore, it conflicts with work done by the social partners: under their ongoing project on a "Framework of Actions on Gender Equality" the social partners are already engaged in considering the issues of gender-segregated labour markets, family/work balance, women managers and equal pay.
- The Confederation of Danish Employers (DA) is thoroughly committed to promoting equal treatment of women and men with regard to employment and equal pay, and also, naturally, to the elimination of all forms of discrimination in the labour market.
- DA proposes that, instead of recasting the directives, the Commission should draw up guidelines for applying the existing rules.
- DA does not believe that including case law in the directive will make the rules any simpler or more easily accessible.
- It is DA's view that two persons' pay cannot properly be compared unless they have the same employer the expression same source is unclear.
- DA takes issue with the timing of this recasting exercise.