Directive 79/7/EEC and its objectives

• Author: Directorate-General for Justice and Consumers (European Commission), EY
• Pages: 16-33

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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Chapter four presents the methodological framework of the study and the major limitations

encountered when gathering and analysing data and in formation.

Evidence from the Court of Justice of the EU ( CJEU) case law and from national case l aw and

analysis of related impacts on the Directive’s application is presented in Chapter five. This

serves the dual purpose of clari fying the interpretation and the evolution of the scope of the

Directive and to guide the subsequent Member State level analysis.5

Chapter six focuses on the i mplementation of the Directive by Mem ber States. This includes

the analysis of th e transposition of the Directive into national laws, as well as an analysis of

the exclusions and derogations envisaged in the Di rective, with a focus on possible hypotheses

of gender discrimination.

The evaluation questions are answered in Chapter seven accordin g to the different evaluation

criteria. Answers are grounded on information gathered through both desk research and

interviews with relevant stakeholders.

The evaluation conclusions and recommendations are drafted in Chapter eight, according to

each evaluation criterion. Final conclusions express the authors’ suggestions and are foll owed

by policy recommendations addressing the main issues emerged duri ng the study.

2 DIRECTIVE 79/7/EEC AND ITS OBJECTIVES

2.1 The legal framework

Directive 79/7/EE C was adopted nearly 37 years ago, and was introduced at the height of

the EU ’s endeavour for equal treatment. Over three decades later that EU quest for equality

remains unchanged, save for the ever changing social and economic circumstances and the

renewed commitment to the progressive implementation of the principle of equal treatment.

Within the intervening years since the EU’s steps towards equality began in the 1970s, the

Treaty on the Functioning of the European Union (TFEU) with its extended scope to combat

discrimination, encompassing its gender mai nstreaming mission, and the vast reforms

undertaken i n the Member States’ national social security systems, mean that modernisation

of this landmark Directive is long overdue.

Most notably, now in 2016, Article 20 TFEU has since 2012 unequivocally decl ared that:

1. ‘Citizenship of the Union is hereby established. Every person holding the nationality of a

Member State shall be a citizen of the Uni on. Citizenship of the Uni on shall be additional

to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subj ect to the duties provided for in

the Treaties.’6

5 Schemes concerning family and social assistance benefits may fall within or outside of the scope of the Directive

depending on their specific features. This study is thus also aimed at identifying common criteria to decide on their

inclusion into or exclusion from the Directive's scope. To this purpose, family benefits are discussed both under section

6.2.1.2, providing an overview o n whether and how Member States avail themselves of the relevant exclusions

applying a gender-based differential treatment, and under section 5.3.2.2, focussing on CJEU case law on schemes

concerning family and social assistance benefits.

6 ”They shall have, inter alia:

a) The right to move and reside freely within the territory of the Member States;

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

17

Such fundamental rights are preceded and under-written by Article 18 TFEU ‘Within th e scope

of application of the Treaties, and without prejudice to any special provisions contained

therein, any discrimination on grounds of nationa lity shall be prohibited’ according to which the

concept of non-discrimination is cruci al to underpin the four rights as per A rticle 20 TFEU.

As affirmed in case law (see section 5), the principle of European non-di scrimination which is

underpinned by the concept of equal treatment, has been granted fundamental constitutional

status within the EU. M ost notably, in stricter relationship with the scope of this study, under

Title X of the TFEU th e ‘Union and the Member States, having in mind fundamental social

rights such as those set out in the European Social Charter signed at Turin on 18 October 196 1

and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have

as their objectives the promotion of employment, improved living and working conditions, so

as to make possible their harmonisation while the improvement is being maintained, proper

social protection, dialogue between management and labour, the development of human

resources with a view to lasting high employment and the combating of exclusion ’.

To that end, the EU has strived to implement measures, taking account of diverse national

practices and legal measures, to improve the working environment; working conditi ons; social

security and social protection of workers; safeguard against the terminat ion of employment;

provide for representation and information and consultation of workers; ensure equality

between men and women at work; combat social exclusion; as well as mod ernise the social

protection systems, more generally, across and within the EU (Arti cle 155 TFEU).

Accordingly, Article 156 TFEU seeks to ‘encourage cooperation between th e Member States

and facilitate the coordination of their action in all social policy fields under this Chapter,

particularly in matters relating to: employment, la bour law and working conditions, ba sic and

advanced vocational training, social s ecurity, prevention of occupational accidents and

diseases, occupational hygiene, the right of association and collective bargaining between

employers and workers’. This latter Treaty provision sets out the equal ity agenda for the EU.

The rise and evolution of the principle equal pay and equ al treatment

The principles of equal treatment and equality have developed at EU level to become a

fundamental social right. The development of the principles can be traced back to the initial

Treaty of the EEC, and in particular are rooted in the development of equal pay protection.

Such a legal position remains steadfast under Article 157 TFEU, which now enshrines and

advances the principle of equal pay.7

b) The r ight to vote and to stand as candidates in elections to the European Parliament and in municipal elections in

their Member State of residence, under the same conditions as nationals of that State;

c) The right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not

represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as

the nationals of that State;

d) The right to petition the European Parliament, to apply to the European Ombudsman, and to address the

institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same

language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the

measures adopted thereunder.”

7 Article 157 reaffirms that:

1. “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or

work of equal value is applied.