Having regard to the Treaty establishing the European Community, and in
particular Article 13 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament,
Having regard to the Opinion of the Economic and Social Committee,
Having regard to the Opinion of the Committee of the Regions,
Whereas:
In accordance with Article 6 of the Treaty on European Union, the European
Union is founded on the principles of liberty, democracy, respect for human
rights and fundamental freedoms, and the rule of law, principles which are
common to all Member States and it respects fundamental rights, as guaranteed by
the European Convention for the Protection of Human Rights and Fundamental
Freedoms and as they result from the constitutional traditions common to the
Member States, as general principles of Community law.
The principle of equal treatment between women and men is well established
by an important body of Community law, in particular in Council Directive
76/207/EEC of 9 February 1976 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.
In implementing the principle of equal treatment, the Community should, in
accordance with Article 3 (2) of the EC Treaty, aim to eliminate inequalities,
and to promote equality between men and women, especially since women are often
the victims of multiple discrimination.
The right of all persons to equality before the law and protection against
discrimination constitutes a universal right recognised by the Universal
Declaration of Human Rights, the United Nations Convention on the Elimination of
All Forms of Discrimination against Women, United Nations Covenants on Civil and
Political Rights and on Economic, Social and Cultural Rights and by the European
Convention for the Protection of Human Rights and Fundamental Freedoms, to which
all Member States are signatories. Convention No 111 of the International Labour
Organisation (ILO) prohibits discrimination in the field of employment and
occupation.
It is important to respect such fundamental rights and freedoms. This
Directive does not prejudice freedom of association, including the right to
establish unions with others and to join unions to defend one's interests.
The Community Charter of the Fundamental Social Rights of Workers recognises
the importance of combating every form of discrimination, including the need to
take appropriate action for the social and economic integration of elderly and
disabled people.
The EC Treaty includes among its objectives the promotion of coordination
between employment policies of the Member States. To this end, a new employment
chapter was incorporated in the EC Treaty as a means of developing a coordinated
European strategy for employment to promote a skilled, trained and adaptable
workforce.
The Employment Guidelines for 2000 agreed by the European Council at
Helsinki on 10 and 11 December 1999 stress the need to foster a labour market
favourable to social integration by formulating a coherent set of policies aimed
at combating discrimination against groups such as persons with disability. They
also emphasise the need to pay particular attention to supporting older workers,
in order to increase their participation in the labour force.
Employment and occupation are key elements in guaranteeing equal
opportunities for all and contribute strongly to the full participation of
citizens in economic, cultural and social life and to realising their potential.
On 29 June 2000 the Council adopted Directive 2000/43/EC implementing
the principle of equal treatment between persons irrespective of racial or
ethnic origin. That Directive already provides protection against such
discrimination in the field of employment and occupation.
Discrimination based on religion or belief, disability, age or sexual
orientation may undermine the achievement of the objectives of the EC Treaty, in
particular the attainment of a high level of employment and social protection,
raising the standard of living and the quality of life, economic and social
cohesion and solidarity, and the free movement of persons.
To this end, any direct or indirect discrimination based on religion or
belief, disability, age or sexual orientation as regards the areas covered by
this Directive should be prohibited throughout the Community. This prohibition
of discrimination should also apply to nationals of third countries but does not
cover differences of treatment based on nationality and is without prejudice to
provisions governing the entry and residence of third-country nationals and
their access to employment and occupation.
This Directive does not apply to social security and social protection
schemes whose benefits are not treated as income within the meaning given to
that term for the purpose of applying Article 141 of the EC Treaty, nor to any
kind of payment by the State aimed at providing access to employment or
maintaining employment.
This Directive shall be without prejudice to national provisions laying
down retirement ages.
The appreciation of the facts from which it may be inferred that there has
been direct or indirect discrimination is a matter for national judicial or
other competent bodies, in accordance with rules of national law or practice.
Such rules may provide, in particular, for indirect discrimination to be
established by any means including on the basis of statistical evidence.
The provision of measures to accommodate the needs of disabled people at
the workplace plays an important role in combating discrimination on grounds of
disability.
This Directive does not require the recruitment, promotion, maintenance in
employment or training of an individual who is not competent, capable and
available to perform the essential functions of the post concerned or to undergo
the relevant training, without prejudice to the obligation to provide reasonable
accommodation for people with disabilities.
This Directive does not require, in particular, the armed forces and the
police, prison or emergency services to recruit or maintain in employment
persons who do not have the required capacity to carry out the range of
functions that they may be called upon to perform with regard to the legitimate
objective of preserving the operational capacity of those services.
Moreover, in order that the Member States may continue to safeguard the
combat effectiveness of their armed forces, they may choose not to apply the
provisions of this Directive concerning disability and age to all or part of
their armed forces. The Member States which make that choice must define the
scope of that derogation.
Appropriate measures should be provided, i.e. effective and practical
measures to adapt the workplace to the disability, for example adapting premises
and equipment, patterns of working time, the distribution of tasks or the
provision of training or integration resources.
To determine whether the measures in question give rise to a
disproportionate burden, account should be taken in particular of the financial
and other costs entailed, the scale and financial resources of the organisation
or undertaking and the possibility of obtaining public funding or any other
assistance.
This Directive is without prejudice to national laws on marital status and
the benefits dependent thereon.
In very limited circumstances, a difference of treatment may be justified
where a characteristic related to religion or belief, disability, age or sexual
orientation constitutes a genuine and determining occupational requirement, when
the objective is legitimate and the requirement is proportionate. Such
circumstances should be included in the information provided by the Member
States to the Commission.
The European Union in its Declaration No 11 on the status of churches and
non-confessional organisations, annexed to the Final Act of the Amsterdam
Treaty, has explicitly recognised that it respects and does not prejudice the
status under national law of churches and religious associations or communities
in the Member States and that it equally respects the status of philosophical
and non-confessional organisations. With this in view, Member States may
maintain or lay down specific provisions on genuine, legitimate and justified
occupational requirements which might be required for carrying out an
occupational activity.
The prohibition of age discrimination is an essential part of meeting the
aims set out in the Employment Guidelines and encouraging diversity in the
workforce. However, differences in treatment in connection with age may be
justified under certain circumstances and therefore require specific provisions
which may vary in accordance with the situation in Member States. It is
therefore essential to distinguish between differences in treatment which are
justified, in particular by legitimate employment policy, labour market and
vocational training objectives, and discrimination which must be prohibited.
The prohibition of discrimination should be without prejudice to the
maintenance or adoption of measures intended to prevent or compensate for
disadvantages suffered by a group of persons of a particular religion or belief,
disability, age or sexual orientation, and such measures may permit
organisations of persons of a particular religion or belief, disability, age or
sexual orientation where their main object is the promotion of the special needs
of those persons.
In its Recommendation 86/379/EEC of 24 July 1986 on the employment of
disabled people in the Community, the Council established a guideline
framework setting out examples of positive action to promote the employment and
training of disabled people, and in its Resolution of 17 June 1999 on equal
employment opportunities for people with disabilities, affirmed the
importance of giving specific attention inter alia to recruitment, retention,
training and lifelong learning with regard to disabled persons.
This Directive lays down minimum requirements, thus giving the Member
States the option of introducing or maintaining more favourable provisions. The
implementation of this Directive should not serve to justify any regression in
relation to the situation which already prevails in each Member State.
Persons who have been subject to discrimination based on religion or
belief, disability, age or sexual orientation should have adequate means of
legal protection. To provide a more effective level of protection, associations
or legal entities should also be empowered to engage in proceedings, as the
Member States so determine, either on behalf or in support of any victim,
without prejudice to national rules of procedure concerning representation and
defence before the courts.
The effective implementation of the principle of equality requires adequate
judicial protection against victimisation.
The rules on the burden of proof must be adapted when there is a prima
facie case of discrimination and, for the principle of equal treatment to be
applied effectively, the burden of proof must shift back to the respondent when
evidence of such discrimination is brought. However, it is not for the
respondent to prove that the plaintiff adheres to a particular religion or
belief, has a particular disability, is of a particular age or has a particular
sexual orientation.
Member States need not apply the rules on the burden of proof to
proceedings in which it is for the court or other competent body to investigate
the facts of the case. The procedures thus referred to are those in which the
plaintiff is not required to prove the facts, which it is for the court or
competent body to investigate.
Member States should promote dialogue between the social partners and,
within the framework of national practice, with non-governmental organisations
to address different forms of discrimination at the workplace and to combat
them.
The need to promote peace and reconciliation between the major communities
in Northern Ireland necessitates the incorporation of particular provisions into
this Directive.
Member States should provide for effective, proportionate and dissuasive
sanctions in case of breaches of the obligations under this Directive.
Member States may entrust the social partners, at their joint request, with
the implementation of this Directive, as regards the provisions concerning
collective agreements, provided they take any necessary steps to ensure that
they are at all times able to guarantee the results required by this Directive.
In accordance with the principle of subsidiarity set out in Article 5 of
the EC Treaty, the objective of this Directive, namely the creation within the
Community of a level playing-field as regards equality in employment and
occupation, cannot be sufficiently achieved by the Member States and can
therefore, by reason of the scale and impact of the action, be better achieved
at Community level. In accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond what is necessary in
order to achieve that objective,
The purpose of this Directive is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual
orientation as regards employment and occupation, with a view to putting into
effect in the Member States the principle of equal treatment.
For the purposes of this Directive, the "principle of equal
treatment" shall mean that there shall be no direct or indirect
discrimination whatsoever on any of the grounds referred to in Article 1.
For the purposes of paragraph 1:
direct discrimination shall be taken to occur where one person is treated
less favourably than another is, has been or would be treated in a comparable
situation, on any of the grounds referred to in Article 1;
indirect discrimination shall be taken to occur where an apparently neutral
provision, criterion or practice would put persons having a particular religion
or belief, a particular disability, a particular age, or a particular sexual
orientation at a particular disadvantage compared with other persons unless:
that provision, criterion or practice is objectively justified by a
legitimate aim and the means of achieving that aim are appropriate and
necessary, or
as regards persons with a particular disability, the employer or any person
or organisation to whom this Directive applies, is obliged, under national
legislation, to take appropriate measures in line with the principles contained
in Article 5 in order to eliminate disadvantages entailed by such provision,
criterion or practice.
Harassment shall be deemed to be a form of discrimination within the meaning
of paragraph 1, when unwanted conduct related to any of the grounds referred to
in Article 1 takes place with the purpose or effect of violating the dignity of
a person and of creating an intimidating, hostile, degrading, humiliating or
offensive environment. In this context, the concept of harassment may be defined
in accordance with the national laws and practice of the Member States.
An instruction to discriminate against persons on any of the grounds referred
to in Article 1 shall be deemed to be discrimination within the meaning of
paragraph 1.
This Directive shall be without prejudice to measures laid down by national
law which, in a democratic society, are necessary for public security, for the
maintenance of public order and the prevention of criminal offences, for the
protection of health and for the protection of the rights and freedoms of
others.
Within the limits of the areas of competence conferred on the Community, this
Directive shall apply to all persons, as regards both the public and private
sectors, including public bodies, in relation to:
conditions for access to employment, to self-employment or to occupation,
including selection criteria and recruitment conditions, whatever the branch of
activity and at all levels of the professional hierarchy, including promotion;
access to all types and to all levels of vocational guidance, vocational
training, advanced vocational training and retraining, including practical work
experience;
employment and working conditions, including dismissals and pay;
membership of, and involvement in, an organisation of workers or employers,
or any organisation whose members carry on a particular profession, including
the benefits provided for by such organisations.
This Directive does not cover differences of treatment based on nationality
and is without prejudice to provisions and conditions relating to the entry into
and residence of third-country nationals and stateless persons in the territory
of Member States, and to any treatment which arises from the legal status of the
third-country nationals and stateless persons concerned.
This Directive does not apply to payments of any kind made by state schemes
or similar, including state social security or social protection schemes.
Member States may provide that this Directive, in so far as it relates to
discrimination on the grounds of disability and age, shall not apply to the
armed forces.
Notwithstanding Article 2(1) and (2), Member States may provide that a
difference of treatment which is based on a characteristic related to any of the
grounds referred to in Article 1 shall not constitute discrimination where, by
reason of the nature of the particular occupational activities concerned or of
the context in which they are carried out, such a characteristic constitutes a
genuine and determining occupational requirement, provided that the objective is
legitimate and the requirement is proportionate.
Member States may maintain national legislation in force at the date of
adoption of this Directive or provide for future legislation incorporating
national practices existing at the date of adoption of this Directive pursuant
to which, in the case of occupational activities within churches and other
public or private organisations the ethos of which is based on religion or
belief, a difference of treatment based on a person's religion or belief shall
not constitute discrimination where, by reason of the nature of these activities
or of the context in which they are carried out, a person's religion or belief
constitute a genuine, legitimate and justified occupational requirement, having
regard to the organisation's ethos. This difference of treatment shall be
implemented taking account of Member States' constitutional provisions and
principles, as well as the general principles of Community law, and should not
justify discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall
thus not prejudice the right of churches and other public or private
organisations, the ethos of which is based on religion or belief, acting in
conformity with national constitutions and laws, to require individuals working
for them to act in good faith and with loyalty to the organisation's ethos.
Article 5
Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal treatment in
relation to persons with disabilities, reasonable accommodation shall be
provided. This means that employers shall take appropriate measures, where
needed in a particular case, to enable a person with a disability to have access
to, participate in, or advance in employment, or to undergo training, unless
such measures would impose a disproportionate burden on the employer. This
burden shall not be disproportionate when it is sufficiently remedied by
measures existing within the framework of the disability policy of the Member
State concerned.
Notwithstanding Article 2(2), Member States may provide that differences of
treatment on grounds of age shall not constitute discrimination, if, within the
context of national law, they are objectively and reasonably justified by a
legitimate aim, including legitimate employment policy, labour market and
vocational training objectives, and if the means of achieving that aim are
appropriate and necessary. Such differences of treatment may include, among others:
the setting of special conditions on access to employment and vocational
training, employment and occupation, including dismissal and remuneration
conditions, for young people, older workers and persons with caring
responsibilities in order to promote their vocational integration or ensure
their protection;
the fixing of minimum conditions of age, professional experience or
seniority in service for access to employment or to certain advantages linked to
employment;
the fixing of a maximum age for recruitment which is based on the training
requirements of the post in question or the need for a reasonable period of
employment before retirement.
Notwithstanding Article 2(2), Member States may provide that the fixing for
occupational social security schemes of ages for admission or entitlement to
retirement or invalidity benefits, including the fixing under those schemes of
different ages for employees or groups or categories of employees, and the use,
in the context of such schemes, of age criteria in actuarial calculations, does
not constitute discrimination on the grounds of age, provided this does not
result in discrimination on the grounds of sex.
With a view to ensuring full equality in practice, the principle of equal
treatment shall not prevent any Member State from maintaining or adopting
specific measures to prevent or compensate for disadvantages linked to any of
the grounds referred to in Article 1.
With regard to disabled persons, the principle of equal treatment shall be
without prejudice to the right of Member States to maintain or adopt provisions
on the protection of health and safety at work or to measures aimed at creating
or maintaining provisions or facilities for safeguarding or promoting their
integration into the working environment.
Member States may introduce or maintain provisions which are more favourable
to the protection of the principle of equal treatment than those laid down in
this Directive.
The implementation of this Directive shall under no circumstances constitute
grounds for a reduction in the level of protection against discrimination
already afforded by Member States in the fields covered by this Directive.
Member States shall ensure that judicial and/or administrative procedures,
including where they deem it appropriate conciliation procedures, for the
enforcement of obligations under this Directive are available to all persons who
consider themselves wronged by failure to apply the principle of equal treatment
to them, even after the relationship in which the discrimination is alleged to
have occurred has ended.
Member States shall ensure that associations, organisations or other legal
entities which have, in accordance with the criteria laid down by their national
law, a legitimate interest in ensuring that the provisions of this Directive are
complied with, may engage, either on behalf or in support of the complainant,
with his or her approval, in any judicial and/or administrative procedure
provided for the enforcement of obligations under this Directive.
Paragraphs 1 and 2 are without prejudice to national rules relating to time
limits for bringing actions as regards the principle of equality of treatment.
Member States shall take such measures as are necessary, in accordance with
their national judicial systems, to ensure that, when persons who consider
themselves wronged because the principle of equal treatment has not been applied
to them establish, before a court or other competent authority, facts from which
it may be presumed that there has been direct or indirect discrimination, it
shall be for the respondent to prove that there has been no breach of the
principle of equal treatment.
Paragraph 1 shall not prevent Member States from introducing rules of
evidence which are more favourable to plaintiffs.
Paragraph 1 shall not apply to criminal procedures.
Paragraphs 1, 2 and 3 shall also apply to any legal proceedings commenced in
accordance with Article 9(2).
Member States need not apply paragraph 1 to proceedings in which it is for
the court or competent body to investigate the facts of the case.
Member States shall introduce into their national legal systems such measures as
are necessary to protect employees against dismissal or other adverse treatment
by the employer as a reaction to a complaint within the undertaking or to any
legal proceedings aimed at enforcing compliance with the principle of equal
treatment.
Member States shall take care that the provisions adopted pursuant to this
Directive, together with the relevant provisions already in force in this field,
are brought to the attention of the persons concerned by all appropriate means,
for example at the workplace, throughout their territory.
Member States shall, in accordance with their national traditions and
practice, take adequate measures to promote dialogue between the social partners
with a view to fostering equal treatment, including through the monitoring of
workplace practices, collective agreements, codes of conduct and through
research or exchange of experiences and good practices.
Where consistent with their national traditions and practice, Member States
shall encourage the social partners, without prejudice to their autonomy, to
conclude at the appropriate level agreements laying down anti-discrimination
rules in the fields referred to in Article 3 which fall within the scope of
collective bargaining. These agreements shall respect the minimum requirements
laid down by this Directive and by the relevant national implementing measures.
Member States shall encourage dialogue with appropriate non-governmental
organisations which have, in accordance with their national law and practice, a
legitimate interest in contributing to the fight against discrimination on any
of the grounds referred to in Article 1 with a view to promoting the principle
of equal treatment.
In order to tackle the under-representation of one of the major religious
communities in the police service of Northern Ireland, differences in treatment
regarding recruitment into that service, including its support staff, shall not
constitute discrimination insofar as those differences in treatment are
expressly authorised by national legislation.
In order to maintain a balance of opportunity in employment for teachers in
Northern Ireland while furthering the reconciliation of historical divisions
between the major religious communities there, the provisions on religion or
belief in this Directive shall not apply to the recruitment of teachers in
schools in Northern Ireland in so far as this is expressly authorised by
national legislation.
Member States shall take the necessary measures to ensure that:
any laws, regulations and administrative provisions contrary to the
principle of equal treatment are abolished;
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 are, or may be, declared null and void or are amended.
Member States shall lay down the rules on sanctions applicable to infringements
of the national provisions adopted pursuant to this Directive and shall take all
measures necessary to ensure that they are applied. The sanctions, which may
comprise the payment of compensation to the victim, must be effective,
proportionate and dissuasive. Member States shall notify those provisions to the
Commission by 2 December 2003 at the latest and shall notify it without delay of
any subsequent amendment affecting them.
Member States shall adopt the laws, regulations and administrative provisions
necessary to comply with this Directive by 2 December 2003 at the latest or may
entrust the social partners, at their joint request, with the implementation of
this Directive as regards provisions concerning collective agreements. In such
cases, Member States shall ensure that, no later than 2 December 2003, the
social partners introduce the necessary measures by agreement, the Member States
concerned being required to take any necessary measures to enable them at any
time to be in a position to guarantee the results imposed by this Directive.
They shall forthwith inform the Commission thereof.
In order to take account of particular conditions, Member States may, if
necessary, have an additional period of 3 years from 2 December 2003, that is to
say a total of 6 years, to implement the provisions of this Directive on age and
disability discrimination. In that event they shall inform the Commission
forthwith. Any Member State which chooses to use this additional period shall
report annually to the Commission on the steps it is taking to tackle age and
disability discrimination and on the progress it is making towards
implementation. The Commission shall report annually to the Council.
When Member States adopt these measures, they shall contain a reference to this
Directive or be accompanied by such reference on the occasion of their official
publication. The methods of making such reference shall be laid down by Member
States.
Member States shall communicate to the Commission, by 2 December 2005 at the
latest and every five years thereafter, all the information necessary for the
Commission to draw up a report to the European Parliament and the Council on the
application of this Directive.
The Commission's report shall take into account, as appropriate, the
viewpoints of the social partners and relevant non-governmental organisations.
In accordance with the principle of gender mainstreaming, this report shall,
inter alia, provide an assessment of the impact of the measures taken on women
and men. In the light of the information received, this report shall include, if
necessary, proposals to revise and update this Directive.
