Regulatory fitness and performance (REFIT) evaluation

• Author: Directorate-General for Justice and Consumers (European Commission), EY
• Pages: 132-149

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

132

often insufficient level of benefits or publicly funded fictitious contributions for social

insurance paid to the person in leave.394

Among other sources of indirect discrimin ation, the case of vertical part-timers in Italy is

again noteworthy. Family benefits are provided in full onl y where contributions equal 24

hours per week. Otherwi se, they are reduced on the basis of the days work ed,

irrespective of the number of hours for each day. As per other branches, vertical part-

timers seem particularly discriminated in this case with specific regard to the calculation

of benefits.

Another interesting case is that of Estonia, a nd relates to the parental benefit, whose

calculation might be considered as indirectly discriminatory. As women tend to stay at

home for bringing up children more often than men, they will usually have a lower

average income du ring the years of maternity. This is then reflected in the calculation of

the income which forms the basis from which the parental benefit for the next child is

paid, even if with some corrections. 395 It should be noted that for a woman having at

least two chi ldren in a row , with the next child born over 2.5 years after the birth of the

previous child, the parental benefit is paid at the designated benefit base rat e, which

would be in most cases lower than t he salary of the same w oman in case she had no

interruption for works due to maternity or child-rearing acti vities.

Overall, it seems that this area may hi de some forms of indirect discrimination, especially

in the absence of clear criteria for the application of the principle of equal treatment.

7 REGULATORY FITNESS AND PERFORMANCE (REFIT) EVALUATION

7.1 Effectiveness

The analysis of the CJEU jurisprudence (chapter 5) and of t he implementation at Member

State level of the Directive (chapter 6) shows that the Directive h as quite significantly

impacted the area of statutory social security.

The first finding of this study is that the principle of the Di rective has been transposed in

all of the Member States, normal ly by means of both specific amend ments to th e social

security legislation396 and horizontal legislation.397

The evaluation also identified three main ‘working patterns’ of the Directive

depending on the Member States’ variant approaches to the principle of equal treatment

before the Directive’s implementation, as emerged in section 6.1.

394 The consequences on the accrual of social security rights of the uneven repartition of family duties still

occurring in most of the Member States have been already analysed in section 6.5.1.2 concerning sickness,

section 6.5.2.2 concerning invalidity and in section 6.5.3.2 as regards old-age.

395 If the parent’s next child is born within the following two and a half years and the amount of the p arental

benefit calculated for that child is smaller than that of the previous child, the benefit is determined on the basis

of the previous income. Parental Benefit Act (Vanemahüvitise seadus) 2004. § 3(8) and § 11(3).

396 Belgium, the Czech Republic, Denmark, Estonia, France, Germany, Greece, Ireland, Italy, Latvia, Lithuania,

Luxembourg, the Netherlands, Poland, Spain, Sweden and the United Kingdom.

397 Austria, Bulgaria, Croatia, Cyprus, Finland, Hungary, Malta, Portugal, Romania, Slovakia, Slovenia.

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

133

The direct pattern concerns Member States with no legislation in place specifically

enforcing the prin ciple of equal treatment in social security schemes. In these cases, the

Directive – and its transposition into national laws – played a pivotal role, by paving the

way to the policy and legal acknowledgement of the principle of equal treatment at

national level.

The indirect pattern concerns Member States with a legal framework already covering

the princi ple of equal treatment irrespective of its adoption at EU level. In these case s,

the Directive contributed to further entrenching the principle at national level, by

increasing policy attention and by fostering the alignment of national laws with the

Directive’s provisions.

The hybrid pattern characterises countries that became Memb er States subsequent to

the Directi ve having entered into force. In these cases, new Member States could have

both directly transposed the Directive into national laws or bu ilt th eir policy and legal

settings acc ording to the Directive’s provisions. In general, those Memb er States

following the hybrid patter did not experienced major legislati ve changes directly linked

to the Directive, as the latter has ab origine inspired the design and the setti ng up of the

national legislative frameworks. This study found that th e majority of these countries

have implemented the key concepts of the Directive by means of a horizontal law, wh ilst

also going beyond its scope.

Irrespective of the ‘working pattern’, all of the Member States have established

procedures for claims against any failure to apply the principle of equal treatment;

however, as discussed in section 6.3, it must be noted that the marked differences

between national procedures in place risk to hinder their use by citizens who have been

subjected to unequal treatment. Nevertheless, moving from the transposition to the

actual implementation and enforcement of the principle of equal treatment, it was for the

CJEU to both clarify the main concepts of the Directive and to seek to ensure their

homogenous application across all of the Memb er States. The pivotal role of the CJEU is

largely ackn owledged398 and it helped, first and foremost, to dev elop criteria for

understanding what was meant by indirect discri mination and ascertaining the conditions

under which this should be outlawed. Among other matters, the CJEU was also key in

defining the personal and material scope of the Directive (see section 5.2 and 5.3). An

additional i mportant step ma de by the CJEU was with respect to the direct effect of the

Directive, deciding that in the absence of transposi tion at national l evel, the Directive’s

provisions remain the only valid point of reference (section 5.4.1). The result of all these

rulings have contributed to giving separate and justiciable rights to individuals, which can

be enforced in national courts prevailing over any contradictory national provision.

The analysis of both the extant case law on the Directive and the resid ual sources of

gender discrimination in national statutory social security (see chapters 5 and 6) suggest

some deficiencies in the framework.

First of all, this study submits that, albeit limited, t here are some cases where direct

and indirect discrimination on the ground s of the Directive could be presumed.

398 Ellis E. and Watson P. (2012). EU Anti-Discrimination Law, Oxford University Press.