Gender Equality and the EU An Assessment of the Current Issues Gracia Vara Arribas * Senior Lecturer, EIPA Laura Carrasco ** Researcher, EIPA Summary Equality between women and men is a fundamental principle of democratic societies. However, it is a fact that there still remain inequalities between men and women. Both at EU and at a national level, a wide range of tools and approaches have been developed with the aim of achieving the goal of equality. The more traditional vertical approach to gender issues is now complemented by the gender mainstreaming of public policies and programmes. This pro-active approach requires those involved in policy making to integrate a gender equality perspective into all policies, at all levels and at all stages. In this article we look at legislative developments in the EU with regard to gender equality, and at the implementation of gender mainstreaming that the Community has carried out since the early 1990s. We also elaborate on the elements necessary for the successful gender mainstreaming of public policies and provide examples of best practice at EU and national level. I. Equality between women and men in the EU: article 119 TEC. It established that the principle of equal An historical overview pay implied the elimination of any discrimination on EU gender policies have gone through major the grounds of sex with regard to anything related to pay developments since the original Treaties. The Treaty of for the same work or work of equal value.3 Shortly after Rome included gender equality, although restricted to the Equal Pay Directive, the Council adopted the Equal the principle of equal pay between men and women. Treatment Directive,4 broadening the principle of equal Indeed, during negotiations on the Treaty of Rome, pay to equal treatment between women and men in the France argued that it was necessary to include the field of access to employment, professional training and principle of equal pay for women and men in order to promotion, and conditions of employment. In the late avoid distortions in competitiveness between Member 1970s and in the 1980s the Council adopted legislation States. Therefore, the reason for the inclusion of this on equal treatment in the field of social security,5 and principle in the Treaty was not so much a response to the self-employed and the role of their spouses.6 concerns about gender equality, but to the need to In parallel with these legislative achievements, the ensure the proper functioning of the Common Market. Institutions started to introduce some internal reforms Article 119 of the Treaty of Rome therefore esta- which reflected the growing interest in – and political blished the principle of equal pay for equal work. commitment towards – gender equality. 1981 saw the Despite the limited scope of this Article, its inclusion in creation of the Equal Opportunities Unit of DGV (EOU). the Treaty allowed the Commission and the European Only three years later, in July 1984 the European Parlia- Court of Justice (ECJ) to play a more active role during ment (EP) created a Committee on Women’s Rights and the 1970s in the promotion of equality between men and Equal Opportunities, which has since dealt with all women in the field of employment and other matters matters relating to this topic. Also in the early 1980s, the related to the labour market, such as social security and work of the Community in the promotion of equality social benefits linked to unemployment. between women and men became more systematic and Accordingly, since 1975 a series of Directives have consistent, with the adoption of the first Equal Oppor- been adopted in order to clarify and develop this basic tunities Action Programme, covering the years 1982- principle of Community Law. Parallel to the legislative 1985. action of the EC, the ECJ played a major role in promoting The Maastricht Treaty also furthered the protection a de jure equality between women and men. Since its of gender equality. The Social Protocol attached to the ruling in the Defrenne case1, which among other things Treaty of the European Community provided that the established the direct effect of Article 119 TEC, the ECJ Community would support and complement national has built up an important case law on gender related action in several fields, including the promotion of issues. equal opportunities between women and men in the Logically, the first legislative measure adopted by labour market.7 Between Maastricht and Amsterdam, the Council in the field of gender equality was the Equal the EU went further in its legislative activity in the field Pay Directive2, which developed and complemented of gender equality. The Directives on pregnancy and 22 Eipascope 2003/1 http://www.eipa.nl maternity leave,8 the Directives on parental leave9 and actions to combat all forms of discrimination. The part-time work,10 and the Directive on the burden of wording of Article 13 includes eight specific grounds on proof in cases of discrimination on the grounds of sex11 which discrimination is prohibited: sex, race or ethnic complemented the Community legislative body on origin, religion or belief, disability, age or sexual equality between women and men in the field of orientation. This Article is of paramount importance, employment and social security. since it covers discrimination beyond the labour market. Two Directives have been passed based on Article The Amsterdam Treaty 13, neither of which referred to discrimination on the The Amsterdam Treaty constitutes an important grounds of sex. These are the Race Directive,12 and breakthrough in the concept of gender issues at Council Directive establishing a framework for equal Community level. So far, gender matters had been treatment in employment and occupation.13 Both of limited to the area of employment, and were basically them are greatly influenced by the Directives on equal considered a question of social policy. This limited treatment between men and women. At the same time, concept changed with the Amsterdam Treaty. In the enactment of this legislation has also helped trigger Amsterdam, gender equality was expressly included in the debate on gender equality which, at least in the Treaties as one of the tasks (Article 2 TEC) and one legislative terms, seemed to be on stand-by. The content of the activities (Article 3 TEC) of the Community. of these two Directives also greatly influenced the Article 3(2) is of particular importances, since it amendment of the Equal Treatment Directive, in which introduces for the first time in the Treaties the concept amendments are very much in line with the wording of of gender mainstreaming, the two Article 13 Direc- which calls for the inte- tives. gration of a gender per- Mainstreaming involves Indeed, the Equal Treat- spective in all policy areas, ment Directive was finally at every level. the incorporation of gender amended last year, in order Major changes were to respond to develop- introduced as well with considerations into all policies, ments achieved in the field regard to social policy. of gender equality, and to The provisions of the programmes, practices and the case law of the Euro- Social Protocol were incor- pean Court of Justice.14 The porated into Title XI of the decision-making so that, main contribution of the TEC. Moreover, Article Article 13 Directives intro- 141 TEC (ex Article 119) at every stage of development duced in the new Equal was also subject to amend- Treatment Directive is the ment in Amsterdam, partly and implementation, definition of direct and incorporating the pro- indirect discrimination. visions of the Social Proto- an analysis is made of the effect The previous Equal Treat- col, and partly incor- ment Directive, even porating developments in on women and men, though it covered both case law and secondary types of discrimination, legislation. Accordingly, and appropriate action is taken. did not provide such defi- Article 141 now incor- nitions. For reasons of porates the concept of consistency, the European “equal pay for work of equal value” which was first legislator considered it appropriate to follow the developed by the ECJ and was expressed in the Directive definitions of the Article 13 Directives in the drafting of on Equal Pay. A new paragraph 3 establishes that the the new Equal Treatment Directive. Apart from the Council, following the co-decision procedure, and after influence of the two Article 13 Directives, perhaps the consulting the Economic and Social Committee, may more remarkable aspect of the Directive is its addressing adopt measures to ensure the application of the principle the issues of moral and sexual harassment in the work of equality between men and women in the field of place, which are considered to be discrimination on the employment and occupation, including the principle of grounds of sex, and are therefore prohibited. equal pay. Finally the new paragraph 4 allows Member Since the new Equal Treatment Directive is based on States to adopt or maintain positive measures in order to Article 141, it refers exclusively to equal treatment facilitate the exercise of professional activities for the between women and men in the field of employment. In under represented sex or to avoid or compensate its Annual Report on Equal Opportunities for Women disadvantages in their professional careers. and Men in the European Union for the year 2001, the Another important contribution of the Amsterdam Commission stated its intention to reinforce gender Treaty was the new Article 13 TEC, which establishes equality legislation by bringing forward a proposal for that, in the framework of the competences attributed to a Directive on sex discrimination based on Article 13 the Community, the Council, acting by unanimity, and TEC.15 The advantage of such a proposal is that we after consulting the European Parliament, can adopt already have a very complete legislative body referring http://www.eipa.nl Eipascope 2003/1 23 to equality between men and women in the field of changing the working methods regarding gender employment and social security, and this proposal could equality policy.