Abstract
This chapter argues that the new Work Life Balance Directive can be considered one example of positive action. First, it recalls some fundamental facts about positive action in EU law: the restrictive case law of the EU Court of Justice and the wide variety of positive action measures that exist at national level, often in favour of women and persons with disabilities. Secondly, it describes the historical origins of the new Work Life Balance Directive, as well as its content, including both measures in favour of men only, like the new paternity leave, and measures in favour of both men and women. On this basis, the third section explains in detail why it can be argued that the new Directive is an example of positive action—albeit a peculiar one. It is neither a form of hard, nor of soft positive action. Nevertheless, its purpose and likely effect is to increase equality of women in the labour market.
The author is currently working for the European Commission, but the content of this article does not reflect the official opinion of the European Union. Responsibility for the information and views expressed therein lies entirely with the author. I would like to thank Professors Marc de Vos, Miguel De La Corte-Rodríguez and Thomas Giegerich for interesting discussions and helpful suggestions.
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Notes
- 1.
Council Directive 2000/43/EC on equality based on racial or ethnic origin, OJ L 180/22 (2000) and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16 (2000).
- 2.
Council Directive (EU) 2019/1158 of the European Parliament and the Council of 20 June 2019 on work-life balance for parents and carers and repealing Council Directive 2010/18/EU, OJ L 188/79, (2019).
- 3.
- 4.
For a longer description and analysis see Oliveira and Gondek (2014), pp. 7–14.
- 5.
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, OJ L 39/40 (1976). In 2006, this Directive was replaced by Council Directive 2006/54/EC on equal treatment of men and women in matters of employment and occupation (recast), OJ L 204/23 (2006). It includes a positive action clause in its article 3: “Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view of ensuring full equality in practice between men and women in working life.”
- 6.
Case C-450/93, Kalanke/Freie Hansestadt Bremen (ECJ 17 October 1995), ECR I-3051.
- 7.
Idem, paragraphs 21 to 23.
- 8.
Oliveira (2017). As I point out there, the dynamic is not always perfect and the existing law can certainly be improved, but the positive trend is quite clear.
- 9.
Article 141 (4) of the Treaty establishing the European Community, renumbered, as from December 2009, Article 157 (4) of the renamed Treaty on the Functioning of the European Union.
- 10.
Meanwhile, Declaration No 28 annexed to the Treaty of Amsterdam, stated that: “When adopting measures referred to in Article 141(4) of the Treaty establishing the European Community, Member States should, in the first instance, aim at improving the situation of women in working life.”
- 11.
Case C-409/95, Marschall/Land Nordrhein-Westfalen (ECJ 11 November 1997), ECR I-6363.
- 12.
Idem, paragraphs 29 to 32.
- 13.
These were the conditions for a priority scheme for women to be accepted: (1) there are fewer women than men in the relevant post, (2) both female and male candidates are equally qualified in terms of their “suitability, competence and professional performance”, (3) the application of each male candidate is “the subject of an objective assessment which will take account of all criteria specific to the individual candidates”, but these criteria must not discriminate against the female candidates, and (4) the priority is not automatic and unconditional, since it will not apply “where one or more of those criteria tilts the balance in favour of the male candidate”. Ibidem, paragraph 35.
- 14.
See Cases C-158/97, Badeck (ECJ 28 March 2000), ECR I-1875 and Case C-476/99, Lommers (ECJ 19 March 2002), ECR I-2891, respectively.
- 15.
See more recently the Case C-46/07, Commission v Italy (ECJ 13 November 2008), ECLI:EU:C:2008:618, paras. 57 and 58. This basic line was confirmed in the judgment of the Court of 12 December 2019 in case C-450/18 WA v Instituto Nacional de la Seguridad Social, paragraphs 65 and 66 (regarding Directive 79/9 on sex equality in social security and a Spanish pension supplement only for women who had at least two biological or adopted children).
- 16.
- 17.
For other grounds of discrimination under Council Directives 2000/43/EC (race) and 2000/787EC (religion or belief, age, disability and sexual orientation) see Chopin et al. (2018), pp. 89–93, including a very useful table of national law at 92–93.
- 18.
For an in-depth critical analysis of the EU framework of family leaves, see De la Corte-Rodríguez (2019).
- 19.
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ L 348/1 (1992).
- 20.
Idem, articles 8 and 11 (2) and (3).
- 21.
Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Council Directive 96/34/EC, OJ L 68/13 (2010).
- 22.
Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ L 145/4 (1996).
- 23.
Council Directive 2010/41/EU of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC, OJ L 180/1 (2010).
- 24.
Article 8 of the directive. It also provides that the allowance shall be equivalent either to sick pay leave, the average loss of income, or any other family related allowance.
- 25.
Proposal for a Directive amending Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, COM (2008) 637 final of 3 October 2008.
- 26.
Legislative resolution of 20 October 2010, doc. ref. P7_TA(2010)0373, with its detailed position on the draft proposal, doc. ref. P7_TC1-COD(2008)0193.
- 27.
Note of the Italian Presidency of the Council of 24 November 2014, doc. ref. 15764/14, p. 1.
- 28.
European Commission, Press Release IP/15/5287 of 1 July 2015.
- 29.
Articles 4 and 8(2) of the new Directive, above quoted.
- 30.
Article 5 and 8(3), idem.
- 31.
Article 6, ibidem.
- 32.
Article 9 of the new Directive and Clause 6(1) of Directive 2010/18, above quoted.
- 33.
Of course, if we examine the European Union law in a wider perspective we cannot forget that under EU law directives women have already the right to 14 weeks of maternity leave, although one can discuss whether their situation as mothers giving birth is completely or partially comparable to that of fathers. For an analysis of this and other related issues, see De la Corte-Rodríguez, op.cit. above.
- 34.
Article 153(1)(i) of the Treaty on the Functioning of the European Union (TFEU).
- 35.
In 2017, the employment rate for men was 78% and for women was 66.5%, for the population. See Eurostat, Gender Pay Gap Statistics: in https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender_statistics (consulted on 28 June 2019).
- 36.
In 2017, there was a gender pay gap of 16% in the EU between men and women, to the detriment of women. This refers to the difference between average gross hourly earnings of male and female employees as % of male gross earnings. See Eurostat, Gender Pay Gap Statistics: in https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender_pay_gap_statistics (consulted on 28 June 2019).
- 37.
In 2017, in average there was a pension gap of 35.7% in the EU, again to the detriment of women. See Eurostat, quoted in “2019 Report on equality between women and men in the EU”, European Commission, p. 24.
- 38.
OECD Family Database, section on “Use of childbirth-related leave benefits” http://www.oecd.org/els/family/PF2-2-Use-childbirth-leave.pdf (consulted on 28 June 2019).
- 39.
Thévenon and Solaz (2013), p. 16.
- 40.
Karu and Tremblay (2018), p. 356.
- 41.
This aspect of the Directive has been called to my attention by my good friend Miguel De la Corte-Rodríguez.
References
Chopin, Isabelle, Carmine Conte, and Edith Chambrie. 2018. A Comparative Analysis of Non-Discrimination Law in Europe 2018 Report for the ENLE. Brussels: European Commission Directorate-General for Justice Unit JUST/D1 Equal Treatment Legislation.
De la Corte-Rodríguez, Miguel. 2019. EU Law on Maternity and Other Child-Related Leaves: Impact on Gender Equality. Alphen aan den Rijn: Wolters Kluwer.
Karu, Marre, and Diane-Gabrielle Tremblay. 2018. Fathers on Parental Leave: An Analysis of Rights and Take-Up in 29 Countries. Community, Work & Family 21: 344–362.
McCrudden, Christopher. 2019. Gender-Based Positive Action in Employment in the EU and EEA, Report also for the ENLE. Brussels.
Oliveira, Álvaro. 2017. What Difference Does EU Law Make? The Added Value of EU Equality Directives on Access to Justice for Collective Actors. In How EU Law Shapes Opportunities for Preliminary References on Fundamental Rights: Discrimination, Data Protection and Asylum - E.U.I. Working Papers, LAW, ed. Elise Muir, Claire Kilpatrick, Jeffrey Miller, and Bruno de Witte, 7–21. Badia Fiesolana: European University Institute Department of Law.
Oliveira, Álvaro, and Michal Gondek. 2014. Women on Company Boards – An Example of Positive Action in Europe. Robert Schuman Centre for Advanced Studies Research Paper No. 2014/34.
Oppenheimer, David. 1988. Distinguishing Five Models of Affirmative Action. Berkeley Women’s Law Journal 4: 42–61.
———. 1996. Understanding Affirmative Action. Hastings Constitutional Law Quarterly: 23, 921–997.
Selane, Goran, and Linda Senden. 2011. Positive Action Measures to Ensure Full Equality in Practice Between Men and Women, Including on Company Boards. Report for the European Network of Legal Experts in Gender Equality and Non-Discrimination (ENLE). Brussels: European Commission Directorate-General for Justice Unit JUST/D1 Equal Treatment Legislation.
Thévenon, Olivier, and Solaz Anne. 2013. Labour Market Effects of Parental Leave Policies in OECD Countries. OECD Social, Employment, and Migration Working Papers 141.
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Oliveira, Á. (2020). A Quite Peculiar Example of Positive Action: The New Directive on Work-Life Balance. In: Giegerich, T. (eds) The European Union as Protector and Promoter of Equality. European Union and its Neighbours in a Globalized World, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-030-43764-0_14
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