Conclusions and recommendations

• Author: Directorate-General for Justice and Consumers (European Commission), EY
• Pages: 149-173

EVALUATION ON THE APPLICATION OF DIRECTIVE 79/7/EEC ON THE PROGRESSIVE

IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF

SOCIAL SECURITY

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All in all, the European added value of the Directive is found rather high both in

contributing to the development of the gender equality policy across the EU and in

combating discrimination on the grounds of sex.

8CONCLUSIONSANDRECOMMENDATIONS

8.1Conclusions

The evaluation study draws a picture of the Directive’s implementation that recognises its

continuing relevance and European added value. However, improvements might be

necessary in order to ensure more effective implementation of the equal treatment

principle and coherence between the relevant EU equal treatment legislation.

This section summarises the key evaluation findings, with a view to developing

appropriate and concrete recommendations as potential options for further

advancements in this field. Although the Directive has been implemented in Member

States through different approaches, the principle of equal treatment for men and

women in matters of statutory social security appears to be fully integrated in

national legislation. Besides, at the time of its adoption and during the subsequent

periods of EU enlargement, the Directive has played a key role as a driving force and

catalyst for the implementation of the principles of equal treatment and gender equality

in the matters of statutory social security across the EU.

Moreover, the Directive has represented, and still represents, an important point of

reference in European case law, as an instrument for tackling cases of gender

discrimination in matters of social security arising from the application of national

legislation.425

Nevertheless, as the economic and social context has evolved since the adoption of the

Directive, some provisions that were intended to improve women’s position in society are

now considered outdated and have even proved to be counterproductive:both due to

the questionable impact in pursuing gender equality through gender-specific advantages

and because they have had the consequence of generating covert indirect

discrimination.426

Possible counterproductive effects include, amongst others, those related to the

provisions of the Directive, with particular regard to exclusions and derogationsthat

were laid down in it in order to allow Member States to maintain gender-specific benefits.

Initially, this approach was intended as both a way for affording advantages to women, in

light of their unfavourable position in the labour market, and as a means of allowing the

Member States to progressively adapt their statutory socialsecurity systems in areas

where changes had significant financial implications for the public purse. In this field, side

effects stem from a variety of conditions pertaining to both the labour market and the

design of statutory social security schemes. One notable example is the derogation

allowing Member States to establish a different pensionable age for men and women

425 See Chapters 5 and 6, as well as sections 7.2 and 7.5.

426 See in particular sections 5.3.3, 6.2.2 and 6.5.

EVALUATION ON THE APPLICATION OF DIRECTIVE 79/7/EEC ON THE PROGRESSIVE

IMPLEMENTATION OF THE PRINCIPLE OF EQUAL TREATMENT FOR MEN AND WOMEN IN MATTERS OF

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(derogation laid down by Article 7(1)(a) of the Directive). This derogation can not only

affect women’s right to higher old-age or invalidity pension benefits, but also exacerbate

the weakened position that women have in the labour market, due to the removal of the

existing incentives that follow from maintaining or re-employing older workers (usually

accompanying equalised pensionable age). Likewise, regarding advantages granted to

persons who have brought up children (derogation laid down by Article 7(1)(b) of the

Directive), more favourable provisions for women could result in the perpetuation of

stereotypes on genders' roles in family and society that, again, do not favour the

progress towards equal treatment and gender equality. Furthermore, the derogation

under Article 7(1)(b) prevents the achievement of equality in this area, including by de

factorestricting the possibility to find indirect discrimination through the interpretative

power of the CJEU, while the said area is particularly significant when assessing effective

gender equality: namely, in the access to statutory social security schemes. This study

has shown that irrespective of the changing economic times, all of the Member States

have demonstrated a certain commitment to equal treatment and have enacted generally

compliant legislation in the field of social security. On this and other grounds, the present

study puts forward a recommendation for a revision of this aspect of the Directive

(Recommendation 1. To revise key provisions of the Directive: Articles 3(1), 3(2) and

7(1)).

More significantly, the personal and material scopes of the Directive have given rise to

considerable litigation both at national and EU level. This is mainly due to the broad

margin of interpretation of the concepts used in the text of the Directive. For instance,

the concept of indirect discrimination,427 the link of the pensionable age with other

rights,428 as well as the definition of social assistance within the meaning of Article

3(1)(b),429remain undefined by the Directive and instead were all considered and defined

through the CJEU jurisprudence.

The constant need to refer such matters to the CJEU, which in turn has developed a

settled and principled approach to such matters, suggests that a Recast Directive would

benefit through codificationof the key relevant CJEU case law that concurred to the

evolution and clarification of the scope and content of the Directive, let alone its

enforcement. This issue is therefore addressed by Recommendation 2. To codify key

CJEU case law.

Another significant finding concerns the complex inter-linkages between Directive

79/7/EEC and the body of EU on equal treatment of women and men, with

particular reference to the EU directives coveringoccupational social security schemes

and voluntary private insurance (respectively, Directive 2006/54/EC and Directive

2004/113/EC). The high complexity of the European legislation concerning equal

treatment and gender equality is likely to induce some uncertainty with regard to what

427 See section 5.4.3

428 See section 5.3.3.1(a)

429 See section 5.3.1