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Bulletin Legal Issues In Gender Equality N Bulletin Of The

  1. 1. BULLETIN LEGAL ISSUES IN GENDER EQUALITY N° 1/2006 Bulletin of the Commission's Network of legal experts in the fields of employment, social affairs and equality between men and women Employment & Social Affairs Theme European Commission Equality between women and men
  2. 2. N° 1 / 2006 Directorate-General for Employment, Social Affairs and Equal Opportunities Unit EMPL/G/2 Manuscript completed in January 2006 The contents of this document do not necessarily reflect the opinion or position of the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities. Neither the European Commission nor any person acting on its behalf is responsible for the use which might be made of the information in this publication. 2
  3. 3. N° 1 / 2006 Production: Sacha Prechal and This Bulletin is available online and can be Annick Masselot obtained from the following website: http://europa.eu.int/comm/employment_social/ gender_equality/legislation/index_en.html. The information contained in this Bulletin reflects, as far as possible, the state of affairs on 31 December 2005 3
  4. 4. N° 1 / 2006 CONTENTS Page Introduction 7 State of affairs in EC policy instruments related to gender equality issues 9 State of affairs in equality cases pending before the Court of Justice 10 1. Cases for which an opinion has been delivered 10 2. Pending cases 10 12 News from the Member States AUSTRIA 12 Anna Sporrer BELGIUM 14 Jean Jacqmain BULGARIA 15 Genoveva Tisheva CYPRUS 17 Lia Georgiades CZECH REPUBLIC 19 Kristina Koldinská DENMARK 20 Ruth Nielsen ESTONIA 21 Anneli Albi FINLAND 22 Kevät Nousiainen FRANCE 24 Hélène Masse-Dessen GERMANY 26 Dagmar Schiek GREECE 27 Sophia Spiliotopoulos HUNGARY 29 Csilla Kollonay Lehoczky ICELAND 30 Herdís Thorgeirsdottir 5
  5. 5. N° 1 / 2006 IRELAND 32 Frances Meenan ITALY 34 Gisella De Simone and Anna Rivara LATVIA 36 Lîga Biksiniece LIECHTENSTEIN 37 Nicole Mathé LITHUANIA 38 Tomas Davulis LUXEMBOURG 39 Viviane Ecker MALTA 40 Peter Xuereb THE NETHERLANDS 42 Ina Sjerps NORWAY 43 Helga Aune POLAND 45 Eleonora Zielińska PORTUGAL 46 Maria Do Rosário Palma Ramalho ROMANIA 48 Roxana Teşiu SLOVAKIA 49 Zuzana Magurová SLOVANIA 50 Tanja Koderman SPAIN 52 Adriana Lozada Hernández SWEDEN 54 Ann Numhauser-Henning UNITED KINGDOM 55 Christopher McCrudden 6
  6. 6. N° 1 / 2006 Introduction – some general trends This Bulletin highlights the latest developments in the field of gender equality at EU and national level. At Community level, the Recast Directive is in the process of being adopted. This Directive aims to clarify and simplify sex equality rights. The Commission is also working on a Communication establishing a ‘Roadmap for Gender Equality’. This Communication will be adopted at the beginning of 2006 and is a follow-up to the ‘Framework Strategy on Gender Equality (2001-2005)’. The Roadmap sets out the Commission’s actions and policies in the field of gender equality. It will also identify strategic objectives in other policy areas of the EU so as to promote the principle of gender equality. At national level, there has been increased activity in the field of gender equality, in particular in the context of parental rights and the reconciliation of family life with work. Indeed, the national experts highlight a great number of measures that have been adopted in the Member States that bring the issues of parental leave and the work-life balance to the fore. In Portugal, for example, the newly elected government has strengthened its commitment regarding the balanced appointment of tasks between men and women. In the same vein, in Sweden an investigation committee has recently recommended the extension of a non- transferable period of paid parental leave. Other Member States have also adopted additional legislative measures that deal with the balance between family life and work. Finland, for example, has introduced a parental insurance scheme, whilst in Poland financial support to parents has been expanded. Ireland and Malta have contributed to the readjustment of the work- life balance through provisions on child care. The adoption of measures that aim to reconcile family life and work, however, does not always guarantee the equal distribution of family responsibilities between both parents. Indeed, as has been pointed out by the French expert, a plethora of paid parental leaves that are available to both parents may encourage in particular women to stay at home. Accordingly, some experts have stressed the need for the adoption of national measures that increase the sharing by fathers of child care responsibilities. In Lithuania, for example, fathers have recently been given the right to paid paternity leave, whilst Germany has introduced a new family allowance that should encourage fathers to make use of their parental leave rights. In addition, some experts further highlight the adoption of other policy incentives to encourage fathers to make use of measures that promote their involvement as parents. In Liechtenstein, for example, the organisation of an annual father’s day at work is intended to strengthen the relationship between fathers and their children, whilst in Slovenia and Estonia a set of initiatives have been taken to overcome gender-specific stereotypes. The situation as regards pregnancy and maternity rights is also gradually improving at Community and national level. In a recent Opinion in case C-296/04, Sarkatzis Herrero, Advocate General Stix-Hackl has reaffirmed in part the settled case-law as laid down in case C-284/02, Sass, regarding the commencement of the protection guaranteed by maternity rights. The AG considered that a worker on maternity leave who has obtained a new post, but who has not yet begun work in this new post, is still entitled to all the rights that are attached to this post from the start of the appointment. Protection of pregnancy and maternity rights has equally been strengthened in the national legal systems of the Member States (Belgium, Latvia, the Czech Republic and Sweden). Nevertheless, discrimination still occurs in practice and particularly concerning the right to return to work (Norway and Iceland), unfair dismissal (Hungary and Luxembourg) and restrictive conditions for self-employed pregnant women who apply for a healthcare scheme (the Netherlands). Progress has also been made in the Member States in relation to the implementation of Directive 2002/73/EC which was due on 5 October 2005. Although there are still a few legal systems that 7
  7. 7. N° 1 / 2006 do not entirely comply with EC law, several experts have underlined national steps in order to promote the full implementation of the Directive. In Denmark and Iceland, for example, a Bill is on the way regarding the disclosure of gender-specific pay data whilst changes to the competences and structure of national equality bodies are put into place in Latvia, United Kingdom, Norway and Poland. Finally, national action has further been intensified in the field of domestic violence. In Austria, for example, two NGOs have filed a communication before the UN Committee of all Forms of Discrimination Against Women regarding domestic abuse. In Greece and Malta a Bill countering domestic violence is currently pending before the national Parliament. 8
  8. 8. N° 1 / 2006 State of affairs in EC policy instruments related to gender equality issues The most recent Official Journal of the European Communities can be found on the following web-site: http://europa.eu.int/eur-lex/en/oj/index-list.html See generally PreLex, the database on inter-institutional procedures: http://europa.eu.int/prelex/apcnet.cfm?CL=en • Proposal for a Regulation of the European Parliament and of the Council of 8 March 2005 establishing a European Institute for Gender Equality. COM (2005) 81 See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=192619 • Proposal for a Directive of the European Parliament and the Council on working conditions for temporary work. COM (2002) 149 final — 2002/0072(COD), OJ 27.08.2002 C/203E/1. See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=172619 See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=186510#364993 • Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast). COM (2004) 279 final – 2004/0084(COD)- supplement SEC (2004) 482 See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=190518 • Proposal for a decision of the European Parliament and Council of 1 June 2005 on the European Year of Equal Opportunities for All (2007) – Towards a Just Society. COM (2005) 225. See: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=192949 Other relevant news: • Opinion of Advisory Committee on Equal Opportunities for men and women on the forthcoming Commission Communication on future developments for equality between men and women. (November 2005) See: http://europa.eu.int/comm/employment_social/gender_equality/docs/2005/opinion_roadmap_ en.pdf • UK Presidency Gender Equality Conference quot;What works for Women, meeting the challenges, sharing the solutionsquot;, Birmingham, UK (7-8/11/2005) See: http://europa.eu.int/comm/employment_social/gender_equality/news/index_en.html • Employment, Social Policy, Health and Consumers Affairs Council (8-9/11/2005) See: http://www.europa.eu.int/comm/employment_social/emplweb/news/news_en.cfm?id=98 • Women and Men in decision-making – a question of balance (15/11/2005) See:http://www.europa.eu.int/comm/employment_social/gender_equality/news/index_en.html 9
  9. 9. N° 1 / 2006 State of affairs in equality cases pending before the Court of Justice All cases, which have been decided or for which an opinion has been delivered, can be found on the web-site of the Court of Justice: http://curia.eu.int/index.htm Recent case law specifically relating to gender equality can also be found on the following web- site: http://europa.eu.int/comm/employment_social/equ_opp/rights/jurisprud.html 1. Cases for which an opinion has been delivered CASE C-540/03 PARLIAMENT v. COUNCIL Date of deposit: 22 December 2003 Opinion: 08 September 2005 O.J.: 21.02.2004/C 47/21 Action for annulment of Article 4 (1), 4(6) and 8 of Council Directive 2003/86/EC - Right to family reunification CASE C-227/04 P LINDORFER Date of deposit: 2 June 2004 Opinion: 27 October 2005 O.J.: 24.07.2004/C 190/10 Article 141 EC - Pension rights CASE C-294/04 SARKATZIS HERRERO Date of deposit: 12 July 2004 Opinion: 10 November 2005 O.J.: 11.09.2004/C 228/28 Directive 85/92/EC - Equal treatment - Maternity rights CASE C-423/04 RICHARDS Date of deposit: 12 December 2004 Opinion: 15 December 2005 Directive 79/7 – Equal treatment – Pension rights - Transsexual 2. Pending cases CASE C-172/02 BOURGARD Date of deposit: 10 May 2002 O.J.:30.04.2004/C 118/26 Directive 79/7/EEC – Progressive implementation of the principle of equal treatment for men and women in matters of social security. CASE C-229/03 HERBSTRITH Date of deposit: 7 April 2003 O.J.: 30.04.2004/C 118/32 Directive 76/207/EEC – Directive 97/80/EC - Principle of equal treatment – Burden of Proof – claim for compensation CASE C-137/04 ROCKLER Date of deposit: 8 March 2004 O.J.: 30.04.2004/C 106/37 Directive 96/34/EC - Sickness benefits- Parental leave 10
  10. 10. N° 1 / 2006 CASE C-185/04 ÖBERG Date of deposit: 20 April 2004 O.J.: 10.07.2004/C 179/2 Directive 96/34/EC - Sickness benefit- Parental leave CASE C-204/04 COMISSION V. GERMANY Date of deposit: 7 May 2004 O.J: 07.08.2004/C 201/14 Directive 76/207/EEC and Directive 97/81/EC CASE C-17/05 CADMAN Date of deposit: 11 January 2005 O.J.: 19.03.2005/C 69/18 Article 141 EC 11
  11. 11. N° 1 / 2006 News of the Member States AUSTRIA1 Anna Sporrer Official Journals, court decisions, initiatives for legislation and other parliamentary materials are available in German on the Internet at: http://www.ris.bka.gv.at 1. Legislation The time-limit for implementation of Directive 2002/73/EC was set at 5 October 2005. However, at Federal State level, this Directive was already implemented in 2004, by legislation which came into force on 1 July of that year (OJ I 65/2004 and OJ I 66/2004). Where the Austrian regions are concerned, the Directive has now been adopted in 5 out of the 9 Länder, namely in Lower Austria (OJ 45/05), Styria (OJ 66/2004), Tyrol (OJ 1/2005), Vienna (OJ 37/2005) and Vorarlberg (OJ 17/2005). The Länder of Burgenland, Upper Austria, Carinthia, and Salzburg failed to implement the Directive on time. 2. Case Law 2.1. Constitutional Court: Discrimination of homosexual couples under the social security system2 The Constitutional Court has set aside several provisions of the Social Security Act and the relevant Statutes of the Vienna Regional Social Security Fund which led to differentiation between heterosexual and homosexual couples. Following the decision of the European Court of Human Rights of 24 July 2003 (the Karner case, case no. 40016/98) the Court departed from its earlier case law and took the view that where legislation refers to a life partnership only and does not require marriage or a blood relationship any differentiation on grounds of sex and or sexual orientation must be justifiable on weighty grounds not to constitute an infringement of the principle of equality. If the legislation therefore stipulates that the unemployed opposite-sex partner of the insured who keeps house for the insured is considered co-insured under the national health insurance system, the same must apply for the same-sex partner. 2.2. High Administrative Court: Sexual harassment - dismissal of a police officer3 The High Administrative Court has confirmed a decision of the High Disciplinary Board (which is part of the (former) Ministry for Public Administration and Sports) by which a leading police officer was dismissed from service for sexually harassing two female subordinates over a period of 4 years and was also found guilty by the criminal court of sexual coercion in two cases. 2.3. Supreme Court: 2.3.1. Dismissal due to pregnancy4 The Supreme Court has dismissed the claim of a female worker whose employment had been terminated because she was pregnant. The worker had been employed by the company as a temp. Two weeks into her probation period she realised that she was pregnant. Three days after she had informed her employer accordingly she was dismissed. However, now that her employment had been discontinued during her probation period, the worker, instead of entering a claim for unfair dismissal, claimed for discrimination in access to employment. The Court referred to ECJ case law5 and considered that Directive 76/207/EEC allows the Member States to 1 Official Journals, court decisions, initiatives for legislation and other parliamentary materials are available in German on the Internet at: http://www.ris.bka.gv.at 2 Constitutional Court, 10.10.2005, G 87/05 et al. and V 65/05 et al. 3 High Administrative Court, 21.9.2005, 2002/09/0135. 4 Supreme Court 31.8.2005, 9ObA4/05m. 5 Dekker, C-177/88; Mahlburg, C-207/98; Habermann-Beltermann, C-421/92; Webb C-32/93; Tele Danmark, C 109/00; et al. 12
  12. 12. N° 1 / 2006 implement the Directive’s objectives by the measures which they see fit. Both the Austrian legislator and the social partners under the relevant collective agreement have elected to treat discontinuation of the employment during probation as dismissal rather than as a case of barred access to employment. The claim had therefore not been made under the correct provisions of the Austrian Equal Treatment Act. 2.3.2. Severance pay for part-time workers6 The Supreme Court has rejected a claim by a female part-time employee that she had been (indirectly) discriminated against because her severance pay had been reduced in accordance with the reduced hours which she had only recently begun to work. It is established case law of the Supreme Court that the amount of severance pay depends on the last-earned salary. Severance pay is intended to provide employees who have been made redundant with an income that is comparable to their average last-earned salary in order to secure a continued income for a certain period of time. Despite the fact that the majority of part-time workers are women, the Court was of the opinion that the arrangement did not discriminate against part-timers in general, but only affected those who had switched from full-time work to part-time work just before dismissal. On the other hand, however, the arrangement favours part-timers who after some time switch to full-time work, e.g. because their children start school or leave home. For this reason, the Court held that the arrangement as such had no discriminatory effect on women. 2.3.3. Time-limit for complaining of sexual harassment in the workplace7 The Supreme Court has upheld the claim of a female employee at a bakery who claimed to have been severely harassed by her former employer. Due to her timid nature, she had kept silent about the incident for almost a year. She finally suffered a breakdown and left her employment. As her notice was the result of the discriminatory behaviour of her former employer, she claimed compensation for unfair dismissal as well as outstanding wages and compensation based on the Equal Treatment Act. The employer argued that she had forfeited any rights which she might have had as she had not handed in her notice until a year after the harassment occurred. The Court found however that sexual harassment constitutes a violation of human dignity and an act of violence against personal integrity and self-determination. Victims of sexual harassment – who in most cases are women – often feel powerless as a result of the harassment and are too ashamed to tell anyone. They also fear that they will face additional hardship if they report the harassment. In this way, victims of sexual harassment are often unable to speak out for quite some time. This fact in 2004 even led the legislator to amend the relevant provision of the Equal Treatment Act, by which the time-limit for claims based on sexual harassment at the workplace was extended from six to twelve months. 3. Pending cases before the UN Committee on the Elimination of all Forms of Discrimination Against Women In 2004 two communications were filed with the UN Committee on the Elimination of all Forms of Discrimination against Women. Both concerned the death of a woman at the hands of her (former) husband. Both husbands had long records of violent behaviour and had each announced that they would kill their wife. Essentially, these communications claim that the Austrian authorities, i.e. the police and the public prosecutor, failed to protect these women effectively. The complaints are of general interest insofar as they raise substantive questions of effective implementation and enforcement of women’s rights, in particular questions concerning the training of officers and judges dealing with women’s rights cases, institutional and procedural questions, etc. The communications have been submitted by two Austrian women NGOs, namely the Vienna Intervention Centre against Violence in the Family and the Austrian Association for Women’s Access to Justice, which is an NGO dedicated to the effective enforcement of women’s rights. 6 Supreme Court 30 September 2005, 9ObA65/05g. 7 Supreme Court 3 August 2005, 9ObA112/05v. 13
  13. 13. N° 1 / 2006 BELGIUM Jean Jacqmain 1. Legislation 1.1 Implementation of Directive 2002/73 Three months after Bulletin no. 3/2005, there is no progress to report. Once again, the federal government has found more pressing issues to deal with; consequently, the draft Bill is still being discussed by the Ministers of Employment and of Equal Opportunities and the Conseil d’Etat has not been asked to give an opinion yet. 1.2 Maternity and adoption leave in the public service 1.2.1 The MultiPurpose Act of 9 July 2004 introduced several improvements in the rules concerning maternity leave by way of amendments to the Working Conditions Act of 16 March 1971: one week was transferred from the (optional) prenatal to the (compulsory) postnatal part of the leave, postnatal leave was extended by two weeks in case of a multiple delivery, and a provision was added that upon the mother’s request, maternity leave can be extended to a maximum of 24 weeks in case the baby has to remain in hospital beyond the first seven days of its life. These improvements have been reported in Bulletin no. 2/2005. The Act of 16 March 1971 is applicable to all employers and employees in Belgium, but it does not deal with remuneration during maternity-related leave. Employees who come under the social security scheme for paid workers are entitled to allowances paid under the maternity insurance scheme, while tenured civil servants continue to receive their normal remuneration. The various regulations applicable to civil servants therefore had to be amended to comply with the changes brought by the MultiPurpose Act of 9 July 2004. This has taken nearly one year for some of the different authorities involved, for instance, the Royal Decree of 19 December 1998 on leaves and furloughs in the federal public service was finally amended by a Royal Decree of 12 October 2005.8 Although the human resources departments had all been informed by way of circulars and no individual difficulties were reported, this is one more example of the ponderous adjustment of public regulations to developments in labour law, especially concerning the protection of maternity. 1.2.2 The same Act of 9 July 2004 introduced a significant improvement of the adoption leave (from ten days to six weeks for children under three and four weeks in all other cases). For this the Employment Contracts Act of 3 July 1978 had to be amended, as had the Consolidated Act of 14 July 1994 on health care, sickness and maternity insurance so that the employee would become entitled to a maternity allowance during adoption leave, starting on the fourth day after the adoption, with the first three days payable by the employer. These amendments did not give rise to any spectacular changes in the public sector where such provisions were already in force and the entire leave is paid by the employer, including that of staff appointed under employment contracts. However, as regards the federal public services, the Royal Decree of 12 October 2005 also introduced the basic protection against dismissal under the Act of 9 July 2004 for these latter staff members (i.e. payment of fixed damages in the amount of three months’ remuneration unless the employer can demonstrate that the grounds for dismissal were unrelated to the employee’s use of the adoption leave). So far, this protection remains the only provision which has been adopted to implement Directive 2002/73 (see above, 1.1). 1.3 Reform in the prépension schemes The federal government has adopted a plan which it has rather pompously called a “Covenant of Solidarity Between Generations” and by which it is intended to increase the occupation rate among older employees, to reduce the unemployment rate among young people and to improve the financing of the social security system. The plan has met with solid opposition from the trade unions, including a one-day general strike, and some of its aspects are still being negotiated. The most sensitive area is that of the prépension schemes under which, after having been made redundant, older employees are entitled to a monthly allowance payable by their former employer to complement unemployment benefits. In order to induce employers to retain older employees on their staff, the government intends to introduce stricter seniority conditions for eligibility for 8 M.B/B.S., 14 November 2005. 14
  14. 14. N° 1 / 2006 participation in prépension schemes. However, this has caused concerns of a risk of indirect discrimination against women, given the persisting unequal distribution of care responsibilities. For this reason, according to reports in the media, the first draft of the plan contained different conditions for men and women and the Institute for Equality of Women and Men had to caution the government that such differentiation would be unacceptable under Article 141 EC, as illustrated by the ECJ case Commission v. Belgium, C-173/91 of 17 February 1993, and that any reduction of the required seniority should apply to all employees who had once assumed care responsibilities. 2. Case Law In Bulletin no. 2/2005 it was reported that a claim of gender discrimination in connection with pay and maternity leave had led to an extremely disappointing judgment of the Labour Court of Appeal of Liège,9 which had reversed a decision of the Labour Court of Marche-en-Famenne.10 The dispute concerned the remuneration which the Post Office, a public body, had to pay to a female tenured staff member when she, after having been allowed to work part-time, was ordered to resume full-time service by a particular date which just happened to be the first day of her maternity leave. It was claimed that the aim of postponing the resumption of full-time service was that this meant that the employer would only have to pay half the worker’s remuneration during her leave and that this was an act of direct discrimination. Upon appeal to the Cour de Cassation, the judgment in the second instance was quashed11 because the Labour Court of Appeal had not countered the claimant’s arguments based on the domestic legislation concerning equal treatment with respect to working conditions (Act of 7 May 1999), taken together with ECJ case law (especially C-342/93 Gillespie). The case was referred to the Labour Court of Appeal of Brussels, where it is now pending. Most remarkably, this is the first time that in matters related to gender equality a trade union has supported one of its members in legal proceedings which went all the way to the Cour de Cassation. Unions will routinely assist their members in litigation by providing them with counsel, but it is exceptional that they cover the fees of a specialised barrister with the Cour de Cassation, which are deliberately fixed at a very high level in order to serve as a deterrent (except in penal cases). However, the three trade union confederations will occasionally support an appeal when the case goes to the principle of a certain matter. It is thus well worth noting that the Fédération générale du travail de Belgique invested in this way in the legal defence of a victim of gender discrimination, especially in the light of the fact that in 2004, upon the invitation of the federal Minister of Equal Opportunities, the three confederations subscribed to a Charter of Gender Equality, thereby undertaking to intensify their efforts to challenge sex discrimination. BULGARIA Genoveva Tisheva During the period under consideration there were no substantial legal, judicial or policy developments in Bulgaria in the area of gender equality. From September to December 2005 the new government set out its initial internal policy commitments and allowed the representatives of the three coalition partners to become acquainted. Time was also devoted to demonstrating to the EU that Bulgaria has implemented all the requirements for full EU membership. During this period voters also expressed their disenchantment with previous government policy and voted in the main for the socialist party, expecting them to keep the promises made during the election period. However, Prime Minister Stanishev clearly stated in October 2005 that the government would not be able to keep these promises, mainly due to external pressure. As a matter of fact, very soon after the establishment of the new government, the IMF imposed additional budgetary constraints. Clear evidence of the strong influence of the IMF is the recent outcome of the teachers strike in Bulgaria. The salaries of teachers in primary and secondary schools are among the lowest in the 9 Judgment of 15 September 2004, Rôle general no. 3645/2003, unreported. 10 Judgment of 21 March 2003, Rôle general no. 27.221, unreported. 11 Judgment of 5 September 2005, 5.05.0016.F, available at http://www.cassation.be. 15
  15. 15. N° 1 / 2006 country, while promoting education was declared to be one of the priorities of the new forces in power. Negotiations between the teachers and the government ended with no substantial results for the strikers, also due to the intervention of the IMF, which referred to the restrictive budgetary policy which the Bulgarian government has to follow. This outcome has clear implications for gender equality, as the profession of teachers is dominated by women and the fact that they are continuously overlooked constitutes indirect gender discrimination. It also contributes to further gender segregation in this sector. The restrictive budgetary policy also poses challenges to the future development of the gender equality machinery in Bulgaria - an issue which will be further discussed below. 1. Legislative developments: initiative for an Equal Opportunities Act As harmonisation with EU standards is considered to be almost completed, there have been no substantial changes in the legislation concerning gender equality. The next round of changes will follow in 2006 in connection with the harmonisation with the acquis in the field of equal treatment in social security matters. One important development, however, is the reviving of the idea to enact a separate law on equal opportunities for women and men in Bulgaria. The initiative for drafting such a law was recently taken by the Ministry of Labour and Social Policy. The draft is intended to be ready by the end of January 2006. This very idea of the new government is commendable in itself. The main challenge will be to position the new law within the framework of existing legislation, especially the Law on Protection against Discrimination and the Labour Code. A main focus of discussion surrounding the new law is the nature of the new institution on gender equality and its position, competences, budget and staffing. It is obvious that Bulgaria needs such an institution, which in many countries already exists. At the same time, the need for a gender equality mechanism has to be balanced against the budgetary constraints mentioned above. It remains to be seen what further developments will take place in this context. At this stage, it would be of great help if the EU supports the enactment of the new law and the establishment of a gender equality mechanism in Bulgaria. 2. Case law There have been no important court decisions in the field of gender equality or even any cases brought before the courts. This confirms that the Law on Protection against Discrimination has not yet become fully operational in practice when it comes to starting sex discrimination proceedings before the courts. It also confirms the need for a special law to distinguish between sex discrimination and other grounds of discrimination, which would make legal action easier for both the applicants and the courts. A parallel can be drawn with the Law on Protection against Domestic Violence here, which has been in force since 1 April 2005. This Law provides for clear procedures for protection in court and there has been substantial court practice both in Sofia and other towns. Currently, in connection with the drafting of the new law on equal opportunities, the Ministry of Labour and Social Policy has requested information from several district courts throughout the country concerning the number and nature of sex discrimination cases that have been brought under the Law on Protection against Discrimination. The outcome of this survey will be included in the next Bulletin. Remarkably, despite the appointment of a special panel on gender discrimination as part of the Commission on Protection against Discrimination, no important equal treatment cases have been brought before the Commission during this period. There have been some cases, but these mostly concerned multiple discrimination, for example claims based on both discrimination on grounds of religion and of gender. The cases in question have not yet been reported, but it is already known that gender was not the leading ground for discrimination. 3. Policy initiatives and other developments 3.1 Changes to the Gender Equality Unit at the Ministry of Labour and Social Policy The Gender Equality Unit at the Ministry of Labour and Social Policy has ceased to exist as an independent unit. Gender equality will now be an aspect of the broader field of equal opportunities for which a new Equal Opportunities Department has been established at the 16
  16. 16. N° 1 / 2006 Directorate of Demographic Policy, Social Investment and Equal Opportunities. This may be considered a step back, but it has to be kept in mind that the new law on equal opportunities for women and men which is currently being drafted will provide for a new gender equality institution. 3.2 National Plan of Action for promoting equal opportunities for women and men On 24 November 2005 the Council of Ministers adopted the 2006 National Plan of Action for promoting equal opportunities between women and men. The aim is that all state institutions will combine forces to carry out the policy for equal opportunities for women and men in all areas of economic, political and social life. This includes ensuring equal access to health services, education, decision-making, equal access to resources in society, overcoming gender stereotypes, and working with the media. The Plan will be funded from the budgets of the different institutions. This again means, however, that there is no separate funding for the implementation of this Plan of Action. We hope that the 2006 Action Plan will have a better chance of success than the previous Plan. This means that it must not remain limited to promises, that there will be adequate financial resources for its implementation and also that women’s NGOs and academic groups will be involved in it. CYPRUS Lia Eftstratiou-Georgiades 1. Case law 1.1 CIVIL APPEAL 294/2005 - Attorney General v Costas Costantinou: The Respondent was a British as well as a Cypriot citizen, who had fled to Cyprus while on trial in the UK for a series of criminal offences. The Respondent was arrested by local police who sought to surrender him to the UK authorities, based on the provisions of the newly enacted Law 133(I)/2004. The matter came before the Supreme Court of Cyprus, which concluded that the surrender of Cypriot nationals to UK authorities, on the basis of a European Arrest Warrant, cannot be effected. The Court reasoned as follows. In 2004, the House of Representatives enacted Law 133(I)/2004 as the national legislation implementing the framework decision concerning the European Arrest Warrant in the domestic legal order. Article 11 of the Constitution of the Republic of Cyprus exhaustively enumerates the reasons for justifying the arrest of a person. None of them can be interpreted as allowing the arrest of a Cypriot national for the purposes of his surrender to the authorities of another Member State. Law 133(I)/2004, which allows arrest in order to surrender the suspect to foreign authorities, contradicts the provisions of the Constitution and is therefore unconstitutional. The Supreme Court, although recognising the binding character of framework decisions, went on to note that they are not directly effective. The intended results of a framework decision – which are binding on the Member States – may be achieved only through transposition in accordance with the appropriate legal procedure in each Member State. This was not the case in Cyprus, since the provisions of Law 133(I)/2004 conflict with the provisions of the Constitution. Based on the Court’s reasoning, the Government has decided to proceed with the amendment of the Constitution, so that in the near future it will be able to fulfill its obligations under the Treaty of the European Union. 1.1.1 Comments Equality between men and women is enshrined in Article 28(1) of the Constitution, which prohibits any direct or indirect discrimination against any person, inter alia, on grounds of sex (Article 28(2)).12 12 1. Νitsa and Georgia Zoukof v. Republic of Cyprus, 25 July 1990, case no. 912/89, Zoe Nikolaides v. Republic of Cyprus, 19 January 1999, Appeal no. 2148, Marina Christophorou v. The Republic, 1985 3 CLR 1868, 23 October 1985, Pelagia Eglezaki v. G. Attorney of Republic, 1992 1 A.A.D 697. 17
  17. 17. N° 1 / 2006 The Supreme Court recognises that the constitutional principle of equality guarantees substantive equality, and since 1962 has accepted the broad interpretation of the concept of remuneration2 corresponding to Article 141(formerly 119) of the Treaty on European Union. However, the Court did not allow positive action on behalf of any group. I would contend, however, based on the Supreme Court judgments referred to above, that the Government has to amend Article 28 (1) and (2) of the Constitution in order to implement the law that was accepted within the framework of harmonization with the acquis communitaire regarding the principle of equality between men and women. 1.2 File Numbers C.A.B. 27/2005, 28/2005, 47/2005, 52/2005 The Ombudsman has examined allegations made by male complainants regarding the current system of employment as teachers in Primary and Secondary Education, in that it discriminates against men. Under Cypriot law, males over the age of eighteen have an obligation to serve for over two years in the National Guard. Normally, enlistment takes place before male candidates pursue university education. Under the current system, university graduates who wish to be employed as teachers in Primary and Secondary Education have to apply in order to be included in the “List for Appointment”. Thereafter, the primary criterion for employment is the year in which this application was made to be included in the “List of Appointment”. Other criteria include the year in which the first university degree was obtained. It follows that people who apply to be included in the “List for Appointment” as early as possible, after the completion of their studies, take priority over the rest of the candidates who are to apply in the future. Men therefore who have an obligation to serve in the National Guard and subsequently have to postpone their studies for two years are placed in an adverse position when compared to women who wish to be employed as teachers. In addition and taking into account the fact that seniority is the primary factor in achieving a promotion to a higher position/rank and/or a pay rise, the established practice has a number of effects throughout the career of the male candidate/teacher. Outlining the provisions of the legislation concerning equality in the workplace, the Ombudsman concluded that the current system of appointment discriminates against men. In the light of this finding, the Ombudsman recommended that the Ministry of Education and Culture promotes the amendment of the legislation so as to achieve substantive equality between men and women. 1.2.1 File Number C.E.B. 31/2005 1. The Ombudsman has examined a complaint concerning allegations made against the Police. More specifically, the Complainant alleged that she was not recruited by the Police Force as a Special Officer because she was pregnant at the time of the recruitment. The Complainant had successfully completed all the required examinations and she had satisfied all the criteria set, apart from the fact that she had not undergone a chest X-ray examination because of her pregnancy. 2. After conducting an investigation, the Ombudsman concluded that the provisions of the Special Officers (Procedure of Appointment and Conditions of Service) Regulations 2004 as followed by the Police Hiring Committee in conjunction with the practice followed by the Police discriminates against pregnant women. The Ombudsman suggested that pregnant women should be employed, on the condition that the results of a chest X-ray examination undergone after childbirth and nursing are satisfactory. The Ombudsman pointed out that the recommendation for the different treatment of pregnant candidates 2. Xinari V Republic of Cyprus 1962 3 CLR p. 98. 3. Micrommatis v. Republic of Cyprus, 2R S.CC 125, A. Mavrommatis v. Republic of Cyprus, 2023, 28 December 1998, Constantinou v. Republic of Cyprus, case no. 1063/99: positive action not allowed; President of Republic of Cyprus v. Parliament, report 2/89, 29 August 1989. 18
  18. 18. N° 1 / 2006 can be justified as a positive measure countervailing the disadvantageous position in which pregnant women find themselves. 1.2.2 File Number C.E.B. 30/2005 1. The Ombudsman examined a case concerning allegations made by a woman that she was the repeated victim of gender prejudice during recruitment proceedings carried out by the Department of Antiquities. More specifically the Complainant alleged that during the years 1992–2004 several of her colleagues who had the same background and experience had been promoted to the position of Antiquities Guards, while she herself had not been. 2. After conducting an investigation the Ombudsman concluded that: (a) Currently in Cyprus 81% of the Antiquities Guards are men and 19% women. (b) The duties of the position can be competently carried out by both sexes, and the sex of the candidate is not a decisive factor. (c) Women Antiquities Guards are not assigned the main duties or all of the duties of the post. The Ombudsman arrived at the conclusion that during hiring proceedings sex constitutes a tacit factor and one cannot therefore exclude the possibility that the Complainant had been the victim of discrimination. The Ombudsman also pointed out that the Complainant had a right to claim compensation under Section 14(1) of the Equal Treatment of Men and Women Act 2002 to remedy the damage which she had suffered. CZECH REPUBLIC Kristina Koldinská 1. Legislative developments: adoption of the Anti-Discrimination Law On 7 December the Chamber of Deputies approved the Law on Equal Treatment and Legal Instruments of Protection against Discrimination (hereinafter: Anti-Discrimination Law). The Law still needs the approval of the Senate and the signature of the President. During the discussion of the Law in Parliament several amendments to the Bill were adopted. The final draft has unfortunately not yet been published. The Law is of a general character in that it provides protection against all forms of discrimination on all conceivable grounds. This includes maternity and pregnancy. Professional assistance to persons who claim to have been discriminated against will be provided by the office of the Ombudsman (of which there is only one in the Czech Republic). As a result of the Anti-Discrimination Law, all other laws containing provisions relating to discrimination and anti-discrimination measures have been amended. From laws which used to regulate anti-discrimination measures the relevant provisions have been withdrawn and inserted into the Anti-Discrimination Law. Among these Laws the following should be especially mentioned: • Act No. 65/1965 Coll., Labour Code • Employment Act No. 435/2004 Coll. • Act No. 221/1999 Coll., on Professional Soldiers • Act No. 218/2002 Coll., on Civil Service • Act No. 361/2003 Coll., on Service of Members of Security Forces • Act No. 1/1992 Coll., on Remuneration • Act No. 143/1992 Coll., on Wages § 133a of Civil Procedure Code No. 99/1963 has also been amended. It used to provide that “Claims as to direct or indirect discrimination on grounds of sex shall be considered proven by the court in labour cases unless during the proceedings the opposite is established” and this has now been extended to cover not only labour cases, but also cases concerning other non-independent activity, including access thereto, and cases concerning the professions, entrepreneurship and other self-employed economic activity, membership in employers’ or employees’ organisations and membership in professional associations. 19
  19. 19. N° 1 / 2006 DENMARK Ruth Nielsen 1. Amendment of the Danish Equal Treatment Act On 15 December 2005, the Danish Parliament finally adopted an Act amending the Equal Treatment Act whereby Denmark with some delay implemented Directive 2002/73/EC. The Act will come into force one day after its publication in Lovtidende (the Danish Official Journal). The definitions of direct and indirect discrimination including the clarification concerning instructions to discriminate (Article 2 (4)) and less favourable treatment related to pregnancy and maternity leave and harassment and sexual harassment including the clarification concerning decisions taken on the basis of rejection of or submission to such conduct have been implemented. The provision in Article 2 (7) of the Directive requiring that less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC shall constitute discrimination within the meaning of the Directive has been implemented in the Danish Equal Treatment Act by a provision stating that direct discrimination on grounds of sex shall be considered to have occurred in all cases of negative treatment in connection with pregnancy and during maternity leave taken by a woman during 14 weeks after confinement. Section 5a of the Danish Equal Treatment Act has extended the scope of application of the principle of equal treatment to also cover membership of and involvement in organisations. This has removed the problem which existed previously in Denmark concerning this point as after over a century the Women Workers’ Union has ceased to exist as an independent trade union. On 1 January 2005 it merged with the predominantly male General Workers’ Union into 3F. The upper limits on compensation which were in place under the ‘old’ Danish Equal Treatment Act have also been abolished. A few problems remain, however. No new provisions have been introduced to implement Article 6(3) of the Directive according to which Member States shall ensure that associations, organisations or other legal entities which have a legitimate interest in ensuring that the provisions of the Directive are complied with, may engage, either on behalf of or in support of the complainants, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under the Directive. Current Danish law on the right of organisations to bring cases before the ordinary courts is unclear. A case on the issue is pending before the Danish Supreme Court. Denmark has decided it does not need to take any action to implement Article 8a of the Directive on the establishment of an equality body for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on grounds of sex. Denmark has also chosen to do nothing to implement the provisions on the obligations to encourage the prevention of discrimination (Article 2 (5) of the Directive), social dialogue (Article 8b of the Directive) and dialogue with non-governmental organisations (Article 8c of the Directive). 2. Force majeure for family reasons (Clause 3 in the framework agreement attached to Directive 96/34/EC). On 30 November 2005, the Minister for Family and Consumer matters presented to Parliament a proposal for statutory provisions to implement the force majeure clause for urgent family reasons in the Parental Leave Directive. In Denmark, that clause has hitherto only been implemented in a number of collective agreements allowing parents to stay at home in case of a child's illness. 3. The Act on reimbursement of pregnancy payments in the private sector (Barselsudligningsloven) On 8 December, the Minister for Family and Consumer matters presented to Parliament a proposal for an Act on reimbursement of pregnancy payments in the private sector (Barselsudligningsloven). The new Act will require all employers in the private sector to pay contributions into a special pregnancy fund. When the employers actually pay out pregnancy- related payments to their staff they can claim reimbursement from the fund. 20
  20. 20. N° 1 / 2006 4. Gender-specific wage statistics In spring 2001, the then social-democratic government proposed an amendment of the Danish Equal Pay Act to introduce a duty for employers with more than 10 staff to – upon request – produce gender-specific wage statistics for the enterprise. The Act was passed in June 2001 but it was provided that the provisions on a duty to provide gender-specific information should not come into force until 1 July 2002 in order to give the employers a chance to prepare for the fulfilment of this duty. The present liberal-conservative government which took office in November 2001 amended the Equal Pay Act so that it became up to the Minister for Employment to decide when (if ever) the provision should come into force. On 7 December, the Minister for Employment submitted a proposal to Parliament to amend the Equal Pay Act. The new provisions will require employers with 35 staff or more to disclose gender-specific wage statistics. There is already a duty on the part of the employers to report their wages to Denmark’s Statistical Bureau for statistical purposes, partly due to Denmark’s duty to provide statistical information to the EU. If the employer so wishes he/she can obtain the gender-specific wage statistics which have to be disclosed to his/her staff free of charge from the Statistical Bureau. ESTONIA Anneli Albi 1. Legislative developments: disciplinary detention of female soldiers On 21 September 2005 Parliament adopted a law which allows the imposition of the penalty of disciplinary detention on female soldiers, except during pregnancy. Disciplinary detention could not previously be imposed on women under Articles 21(3) and 23(3) of the Defence Forces Act.13 According to the Explanatory Memorandum to the new law, such differentiation is in breach of the principle of equal treatment of men and women. Earlier, the Chancellor of Justice (an institution similar to the Ombudsman) had already drawn the attention of the Ministry of Defence to this matter. 2. Policy initiatives and other developments 2.1 Gender Equality Commissioner The newly-appointed Gender Equality Commissioner, Ms Margit Sarv, has dealt with eleven queries during the first two months of her appointment. Two queries concerned circumstances that were specific to the applicant and nine queries related to general issues regarding equality. Five queries were made by men and six were made by women. The queries concerned the following: equal treatment in the media (1), employment relations (recruitment and equal pay) (2), services (2), equality-related training (2), defence (1), social security (1) and the raising of children after a divorce (1). 2.2 Office of the Chancellor of Justice In October 2005, the Office of the Chancellor of Justice published its Annual Report concerning its activities over 2004.14 This institution, apart from functioning as a type of Ombudsman since 2004, is also competent to mediate in discrimination cases. According to the Report, only one such mediation was initiated in 2004 between private parties. The proceedings concerned different treatment on grounds of citizenship. As participation in the proceedings in question is voluntary and the defendant did not wish to cooperate, the case was discontinued and no official opinion was issued. In 2004, the Chancellor of Justice also questioned the constitutionality of the Defence Forces Act as discussed above. According to the Report, the Chancellor of Justice in the course of 2004 focused on raising awareness amongst the general public concerning its new competences and on training its employees in the field of equal treatment. For instance, in March 2004 a round table was held, with the participation of non-profit organisations working in the field of gender equality, disability, 13 RT I 1997, 95/96, 1575; 1999, 31, 425. 14 Õiguskantsleri 2004.a. tegevuse ülevaade [Overview of the Chancellor of Justice’s activities in 2004], Tallinn 2005, www.oiguskantsler.ee. 21
  21. 21. N° 1 / 2006 sexual minorities and national minorities. The objective of the round table was to inform the organisations concerning the Chancellor of Justice’s new mediation competences in the field of equal treatment law, and to exchange information concerning problems that arise in practice. Employees of the Office further underwent training in the field of EU non-discrimination law, in co- operation with the Northern Ireland Equal Treatment Commission. The training involved visits to relevant institutions in Northern Ireland and in the EU. At the end of 2004, the Office of the Chancellor of Justice joined the European Network of Specialized Equality Bodies (EuroNEB). The purpose of the network is to develop and facilitate information exchange between equality bodies, to support cooperation between the relevant institutions of the Member States and the European Union, and to harmonise the practices of interpretation and application of European Union law in Member States. 2.3 Ministry of Social Affairs On 7 December 2005, the Ministry of Social Affairs, in cooperation with other organisations, held a conference on “the new masculinity”. Whilst the position of women has gained importance and the role of women has expanded as a result of activities promoting gender equality, the position of men has remained largely unchanged. The purpose of the conference was to redefine thinking and broaden minds concerning masculinity and to liberate the concept from stereotypes, now that diversity and multiplicity of roles are considered to enrich society. 3. Developments in general discrimination law: termination of employment contracts On 27 October 2005, Parliament initiated a Bill amending Article 86, item 10 and Article 108 of the Labour Contract Act, which currently provides that an employer may terminate a labour contract on the ground that the employee has reached the age of 65. The Explanatory Memorandum accompanying the Bill points out that this ground is incompatible with Directive 2000/78 and has been criticised by the EU, the Council of Europe and the ILO. A similar Bill had been voted on a few months earlier, but failed to secure the required majority. The Bill was resubmitted following the Chancellor of Justice’s request to Parliament, in which he pointed to the unconstitutionality of the current provisions. FINLAND Kevät Nousiainen 1. Enforcement of Act on Equality The amended Act on Equality between Women and Men came into force in June. The revised Act specifies new requirements for gender equality planning. Under Section 6 a of the Act, all employers of more than 30 persons must set up an equality plan containing an analysis of the equality situation in the workplace and, as a part of that, an analysis of the placement of women and men at different tasks, an analysis of the job classification and pay by gender, as well as an analysis of pay differentials. A working group assigned by the Ministry of Social Affairs and Health, representing the Gender Equality Unit of the Ministry and all labour market central organisations have compiled a handbook for equality planning to be used at workplaces. The handbook leaves the specific structure of the pay analysis rather open, as workplaces vary. Yet, the analysis should always be given separately concerning all pay components, i.e. based on job qualifications, personal competence and results.15 2. Policy initiatives 2.1 Parenting costs The present Government in its programme promises to introduce a more equal distribution of the cost of parenting between employers in male-dominated and female-dominated branches of the segregated labour market. A gender-neutral parental leave, mainly paid through social insurance, has been available for around 20 years. Still, it is the mothers who continue to take the leave and parental benefit in the great majority of cases. A recent ‘bonus’ extension of the leave for fathers 15 Why, what and when of gender equality planning. Handbooks of the Ministry of Social Affairs and Health 2005:19 (in Finish). 22
  22. 22. N° 1 / 2006 that share the family leave with the mother has led to some amount of sharing of the leave between parents. The imbalance between the parents remains, however. Some costs related to parental leave still burden the employer, and these costs are borne by the employers of typical ‘female’ sectors of the labour market. The Ministry of Social Affairs and Health appointed an ad interim Rapporteur to investigate the matter. The Rapporteur proposed the establishment of a parental insurance scheme from which the employers’ costs could be covered. Even the costs of force majeure family leaves, such as leaves of absence for taking care of a sick child, could be covered from the insurance. The Rapporteur also proposed that the amount of the parental leave benefit should be raised. Today, the benefit paid under the Sickness Insurance Act 2004/1224 is regressively income related, and fathers who usually have higher incomes than mothers tend to lose a greater part of their income if they take parental leave. A rise in the benefit would thus encourage men to use their right to leave.16 2.2 Fixed-term employment relations Another ad interim Rapporteur appointed by the Ministry of Labour has investigated the frequency of the use of fixed-term employment contracts and possible violations of labour and anti- discrimination law in that context. For the investigation, a study by Statistics Finland mapped out the number of such contracts and enquired into the reasons for their use. The use of fixed-term employment has continued to increase in Finland, especially for young people and highly educated women of childbearing age. The public sector, which employs women in health care, education and social welfare jobs, continues to use fixed-term contracts widely. Partly, the use of fixed-term work in these fields is explained by the frequent need of workers substituting those on family-based leave, although a recurrent need for substitutes does not justify the use of a chain of fixed-term contracts. Also the use of hired work has increased in Finland. The Rapporteur concludes that the supervision and legal safeguards have been inefficient, and proposes that the Employment Contracts Act be clarified and the law on hired work amended. The Rapporteur draws attention to the discriminatory use of fixed-term work for women of child-bearing age. The Equality Ombudsman has noted that fixed-term contracts are not always continued when the employee in question becomes pregnant. The report also notes the connection between the prevalence of the use of family-based leaves and fixed-term contracts in female fields of work. The cooperation and negotiation system as well as legal remedies should be strengthened to deal with the problems, according to the Rapporteur.17 There is reason to suspect that the use of fixed-term contracts in some fields, mainly for young female staff, may constitute indirect discrimination, because, as the report also notes, fixed-term contracts are twice as common for women than men in the age group with small children. The Rapporteur does not discuss indirect discrimination in this context, however. Both the report on increased compensation for the costs caused by family leaves and the report on the fixed-term employment contract have been criticised in public by the employers’ unions. Setting up a one-person Rapporteur instead of a tripartite committee when issues concerning labour law are discussed is unusual, which may partly explain the criticism. 3. Celebration of women’s suffrage Several events and initiatives have been taken in connection with the celebration of the centennial of universal and equal suffrage in Finland in 2006; the universal suffrage of 1906 included both the vote and eligibility in elections for women. The Committee for the Centenary of Women’s Full Political Rights in Finland initiated the production of specific suffrage pages on the web. The webs contain texts by researchers and other information on women’s political rights, also in English. The suffrage site was opened in December, see www.aanioikeus.fi. 16 Janne Metsämäki, Increased compensation for the costs caused by family leaves. Report by the ad interim Rapporteur Working Group, Memorandum of the Ministry of Social Affairs and Health 2005:16 (in Finnish). 17 Kirsti Palanko-Laaka, Määräaikaisen työn yleisyys, käytön lainmukaisuus ja lainsäädännön kehittämistarpeet. Työhallinnon julkaisu 359. Työministeriö 2005. 23
  23. 23. N° 1 / 2006 4. Developments in general discrimination law The Labour Court has ruled on the alleged discrimination of a fixed-term worker in case TT:2005- 111. As fixed-term work has become strongly gendered (see above), the decision may have gender relevance. A collective agreement in force for the postal service in its capacity of employer included provisions that had to prevent the renewal of fixed-term employment contracts for inappropriate reasons. The provisions had been adopted after the use of fixed-term contracts had risen abundantly. In the case in question, the employer had recruited a new, less qualified fixed-term worker for tasks which had earlier been performed by another, experienced fixed-term worker. The recruitment took place three weeks after the first fixed-term worker’s contract had ended. The employers’ organisation had interpreted the provision in the collective agreement that had to prevent this as only applying for a week after the first contract had expired. The Court however found that the collective agreement had been violated. It also implied that if the employer had been able to prove that the new worker was the better person for the job, this could have been considered an objective justification. Any actions against the employer for damages had to be brought before the ordinary courts. FRANCE Hélène Masse-Dessen 1. Legislative developments 1.1 Law concerning equal pay The Bill concerning equal pay is still being debated by Parliament, but is expected to be passed soon, as on 12 December last it was adopted after second hearing by the National Assembly and has just been submitted to the Senate. 1.2 Law concerning Social Security funding adopted on 23 November The law in question has amended the rules concerning parental leave and the parental benefit known as allocation de presence parentale, which the parents of severely ill, disabled or injured children are entitled to. The scheme allows parents to take time off work or reduce their hours in order to care for their child. It was created in 2001 and intended for use by an estimated 13000 families. In practice, however, the number of families applying for this leave was far less and the scheme was amended to allow parents a “credit” of 310 days leave with full salary compensation which is to be taken within a period of 3 years. By the same law amendments were made to the leave known as congé de libre choix d’activité. Under this leave parents with at least 3 children who leave work in order to raise them are now entitled to a monthly benefit of 750 euros. The benefit can be shared between the two parents. Under another scheme parents are eligible for a parental education benefit (allocation parentale d’education, hereinafter: APE) for their first child during 6 months at 512 euros a month. For a second child they are entitled to the same amount up to 3 years. However, returning to work after this period has proven difficult, apart from for civil servants who must be guaranteed a position after having made use of the scheme. A third rung on the APE ladder has been built in for a different purpose, namely to boost birth rates. For this reason, the benefit under this rung may be increased to a maximum of 750 euros a month. Certain provisions under tax law also have as their objective to boost the birth rate by allowing tax breaks for parents of at least 3 children and granting them double family benefits. The myriad rules have made family policy very complicated and do not incite women to work. APE rights are not coordinated with pension law as the concurrent parental leaves are not all taken into account to calculate pensions. Another amendment has remedied the situation whereby Article 10 of the law of 11 February 2005, although providing for an extension of maternity leave in case of premature birth, did not entitle the women in question to extra benefits. Extra benefits are now provided under a new Article L 331-3 of the Social Security Code. Finally, a rule has been adopted which was the subject of much debate. It provides that immigrants are only entitled to family benefits for children who were born in France or have regularly visited the country by means of the appropriate legal procedure, children of whom a parent is entitled to a residence permit for private and family life reasons (Article L 313-11 of the 24
  24. 24. N° 1 / 2006 law concerning admittance and residence of aliens) and who entered France with this parent, or children who are specifically protected (such as refugees or under, for example, the special residence permit for scientists). The Constitutional Court has approved the provision in question provided that children whose situation becomes regular after entering France also receive the allowance. 2. Case law 2.1 Administrative courts There have been no exceptional developments in this field, apart from the fact that the spate of case-law and legislative amendments ensuing from Griesmar has not abated. Many male civil servants have applied for equal benefits, although time-limits have often frustrated their applications, while many female civil servants have protested against the loss of the pension bonus which they would have been granted if their pensions had been calculated under the old situation. 2.2 Ordinary courts The number of equal pay cases brought before the courts is increasing as lawyers become more familiar with the instruments for pay comparison. The many cases that were brought before it have led the Cour de Cassation to use clearer concepts and to better distinguish between equality and non-discrimination rules. The system of compensation has also been improved. The Cour de Cassation has decided that victims should not only be granted financial compensation, but that their entire careers have to be re-calculated including for the future, as for example in Soc. 23 November 2005, request no. 03 40 826 (not yet reported), which did not concern sex discrimination as such, but discrimination against trade union members, but which can easily be imagined to apply in a similar way for any sex discrimination cases arising. However, many problems continue to exist, especially in the field of proof. The Cour de Cassation has also decided not to issue an interpretation of the concept of harassment. The Cour held that it is for first instance or appeal courts to decide whether harassment, which is a factual notion, has in fact occurred. Again, an example may be found in a related area in case Soc. 23 November 2005, request no. 04 46152 (not yet reported) which concerned moral harassment. 3. Other institutions The new High Authority against discrimination has begun its work, although this has not yet led to apparent results. It is being decided which studies will be carried out and action on behalf of victims is as yet limited to assistance in individual cases. Combating discrimination against women is only one part (and a very small part at that) of the activities assigned to this authority, although efforts are made not to let gender discrimination slip by the wayside. 4. Further observations Discrimination in general has received much attention in France, but gender discrimination is not clearly distinguished from other grounds of discrimination. Many events have been organised concerning this topic for an audience of judges, labour administrations, practitioners, employers, managers, etc., like for example in Paris on 9 December last. Pensions are also still top the agenda. The Conseil d’Orientation des Retraites, which is an independent authority whose role is to study pension schemes and propose any necessary reforms, has decided to table for 2006 “the quest for equality between men and women in statutory pension schemes” which inter alia cover civil servants. Studies which were discussed in a major meeting in Paris on 15 December which kicked of the working programme have revealed the presence of a significant gap between men’s and women’s pension levels. This is caused by the fact that women’s careers are shorter than men’s and that during their career they are paid less. Measures aiming to achieve a balance based on a family concept of pension law and indirect rights are being contested due to their adverse effects. However, if indirect pension rights which originate with women’s husbands’ pensions were to be abolished, women would face a sharp decrease in the amount of pension which they would receive. In addition, the reforms that 25
  25. 25. N° 1 / 2006 have come into force as a result of Griesmar, or under the pretext of Griesmar, have already penalised women now that the number of working years used to calculate their pension has been reduced and men can claim pension retroactively without any age or income requirements applying. The reforms which were abusively presented as necessarily following from EU law – which is absolutely not true – are of course the subject of severe criticism for not creating a better situation and in fact reversing former advantages. This is yet another example of the fact that equality in the meaning of EU law has to be constantly and clearly explained. GERMANY Dagmar Schiek Generally, there have not been many developments in the period between the elections in October and the end of the year. After the elections, the Social Democrats (SPD) and the Christian Democrats (CDU) formed a “Grand Coalition” and due to the fact that both have almost equal clout negotiations on the future course of government are still ongoing. 1. Legislation 1.1 Parental allowance – another new (and equally disputed) proposal The SPD and the CDU have agreed to improve the situation of young families and to encourage fathers and mothers alike to take family leave by introducing a new “family allowance”. In order to encourage more fathers to take family leave, the family allowance will be in the amount of two-thirds of the monthly pay. In a first proposal from family Minister Ursula van der Leyen (CDU) families were to receive up to 1800 euros per month during 12 months, provided that each parent claimed at least two months. The allowance is in any case considerably higher than the previous meagre Erziehungsgeld of 600 euros (900 if claimed for two years) which practically served as an encouragement for mothers to leave the labour market. The new model is harshly criticised, especially by CDU/CSU politicians, who argue that it imposes an obligation on men to take family leave if families are not to lose two months of benefits. 1.2 Progress of the Bill to implement Directives 2000/43/EC, 2000/78/EC, 2002/73/EC and 2004/113/EC The passing of this Bill was severely threatened by the premature elections. On 20 December, however, the Greens took an important step to help progress in this issue by retabling the Bill as it had been passed by the Bundestag on 2 July, even though this version meant that the Greens had to make considerable sacrifices on issues that were important to them in favour of business-related interests. Shortly after the elections, the new (and also old) Minister of Justice, Brigitte Zypries, declared that she would support a Bill which would ban discrimination in the provision of goods and services on the following grounds: race and ethnic origin, gender, disability, sexual orientation and age. This means that the wide approach to outlawing discrimination might, after all, become a reality in Germany. The bill is to be found here: http://dip.bundestag.de/btd/16/002/1600297.pdf 2. Case Law On 20 December, the Federal Constitutional Court18 informed the public of its judgment of 6 December on the gender-specific name which the law requires transsexuals to have. The case involved a transsexual who had chosen not to undergo a sex change operation. The question was whether after marriage this person was allowed to continue to be called by the same gender-specific name from before the transformation. The Court held that in effect the law requires transsexuals to undergo an operation if they wish to be known by a certain name and held that this was in violation of transsexual persons’ personality rights and for this reason ruled that the statutory provision in question (§ 7 para. 3 of the Transsexuellengesetz) was unconstitutional and void. Like the ECJ in its recent case law on transsexuality,19 the Constitutional Court seems prepared to accept the reality 18 Case no. 1 BvL 3/03, press release available at http://www.bundesverfassungsgericht.de/cgi- bin/link.pl?presse. 19 Case C-117/01 K.B. [2004] ECR I-541. 26
  26. 26. N° 1 / 2006 that nature provides for more human variety than the traditionally acknowledged two sexes. As has been demonstrated by the ECJ judgment referred to, this opens up the possibility of considering discrimination on grounds of the sex of a partner as sex discrimination proper instead of opting for the ground of sexual orientation. GREECE Sophia Spiliotopoulos Measures against domestic violence 1. The Report of a Special Commission 1.1. For many years, Greek women’s NGOs have been demanding specific legislative and other measures (mainly aimed at supporting victims) against domestic violence. Last March, the General Secretariat for Equality set up a Committee whose task it was to examine this question. This Committee was composed of academics and other legal experts, a psychiatrist and a social worker and of representatives of the abovementioned General Secretariat and of the Ministries of Justice and Public Order and was chaired by an honorary judge of the Supreme Civil and Penal Court. The Committee heard representatives of the social services, political parties, local authorities and women’s NGOs. 1.2. In its Report, published in July 2005, the Committee mentions that it took into account relevant international conventions ratified by Greece and recommendations of international organisations; developments at EU level; the seven indicators against domestic violence proposed by the Danish Presidency of the EU (2002) within the framework of the follow-up of the Beijing Platform of Action;20 a comparative study of the policies and legislative measures adopted by the 15 EU Member States and Cyprus; and studies regarding the sociological and other aspects relevant to the phenomenon of domestic violence in Greece. 1.3. The Report presents the legal and factual situation in Greece, as well as proposals for the adoption of legislative and other measures. According to the Report, domestic violence, although less widespread in Greece than in other European countries, is a disturbing phenomenon, whose victims are mainly women and children. There is a considerable amount of domestic violence which is not reported and thus remains ‘invisible’. Experience and research have shown that like in other countries this phenomenon is not only due to individual psychological factors, but also to a considerable extent to social stereotypes which perpetuate the inferior position of women in society. Neither the victims, nor the perpetrators are necessarily poorly educated or come from poor socio-economic backgrounds. Moreover, the use of alcohol or drugs or the existence of mental health problems, although they aggravate the situation, are not, in the majority of cases, decisive factors in domestic violence. Violence against women is a serious human rights breach and, for it to be eradicated, it must be dealt with as such. 1.4. The Report recommends the adoption of several amendments to the Penal Code, to the Code of Penal Procedure and to the Code of Civil Procedure, as well as a Plan of Action for the prevention and combat of domestic violence, which will include measures relating to education (reform of school programmes, training of teachers), the media, the creation of shelters for women and children victims of domestic violence, as well as more general policy measures for the support of families and vulnerable individuals and groups. Regarding the substantive penal law provisions, the Report considers that it is not necessary or opportune to make acts of domestic violence specific offences. It will be more effective under Greek penal law, to complement relevant existing provisions of the Penal Code, e.g. those relating to corporal injury, coercion, etc, by providing for heavier penalties in case the victim is the perpetrator’s spouse or cohabiting companion, child of 20 The seven indicators are as follows: characteristics of women victims of violence, characteristics of the perpetrators, support to the victims, measures for dealing with perpetrators with a view to ending the circle of violence, training of professionals, state measures for the eradication of domestic violence whose victims are women, evaluation. 27
  27. 27. N° 1 / 2006 any age, parent/parent in law, brother/brother in law or sister/sister in law. Moreover, the Report recommends that intra-marital rape be made an offence.21 1.5. A system of ‘penal mediation’ should also be provided, in accordance with the Framework Decision of the Council of the European Union on the standing of victims in criminal proceedings, dated 15 March 2001 (2001/220/JHA). This ‘penal mediation’ should be undertaken by the public prosecutor dealing with an act of domestic violence, provided that the accused unreservedly promises that he/she will not commit any act of domestic violence in the future and that he/she is prepared to undergo counselling and make good the damage sustained by the victim. During the penal mediation, the relevant statute of limitation is to be suspended. In case the penal mediation succeeds, the prosecution has to be discontinued. 1.6. As an exception to a general penal procedure rule, the spouse, the parents, the children and the brothers or sisters of the accused should be heard as witnesses, but not under oath. The possibility to hear via audiovisual means any witnesses who might be traumatised if they had to appear in court in person, in particular minors, should also be provided. Witnesses who are called upon to testify or have testified in trials relating to domestic violence should be able to benefit from special protection where necessary. 1.7. Furthermore, the Report recommends the setting up of structures for the prevention and repression of domestic violence and for support of the victims and/or the strengthening of existing structures of this kind, including counselling services, SOS telephone lines, shelters for women and children victims of domestic violence, etc. It also recommends the establishment of a permanent Commission for the coordination and follow-up of the measures aimed at combating domestic violence and the drafting of a Plan of Action for the prevention and repression of domestic violence. 2. Bill on domestic violence 2.1. Following the above Report, the Ministry of Justice elaborated a Bill “for countering domestic violence”. This Bill contains provisions amending the Civil Code and the Code of Civil Procedure. It also addresses matters dealt with by the Penal Code, and the Code of Penal Procedure, but it is drafted as an independent piece of legislation. The Bill also contains provisions aiming at the support of victims of domestic violence. More particularly: 2.2. The Bill defines the “family” as a community consisting of the spouses, their natural or adopted children and their close relatives who live with them, or of cohabiting couples in a prolonged and stable relationship and their natural or adopted children. Single parent families are not included in this definition. The amendments to the Civil Code provide that: domestic violence of any kind presumes the breakdown of the marriage and constitutes a ground for divorce and a parent who commits violent acts against his/her child may be deprived of the custody of this child (by court order only). The latter can already be inferred from the Civil Code. 2.3. Regarding substantive penal law provisions, the Bill unfortunately does not implement the recommendations in the Report. Instead of complementing provisions of the Penal Code (supra no 1.4), it makes acts of domestic violence specific offences. This may well create legal uncertainty, in particular regarding the definition of these specific offences as compared to the definitions provided by the corresponding Penal Code provisions. Moreover, the Explanatory Report to the Bill (in contrast to the Report, supra no 1.3) does not mention the fact that the victims are mainly women and that, therefore, along with children, the Bill mainly aims to protect women. 2.4. The Bill does follow the Report in that it makes intra-marital rape an offence (supra no 1.4). It also follows the Report in that it provides that, during civil litigation relating to domestic violence, the civil court may order the departure of the perpetrator from the family home and/or prohibit the perpetrator from nearing the home or workplace of the victim and the victim’s close relatives, the school of the children or the shelter where the victim resides. The same measures may be ordered 21 Currently, Art. 336 of the Penal Code punishes only “extramarital” rape. 28
  28. 28. N° 1 / 2006 by a penal court which hears a domestic violence case. Minors may testify as witnesses in a domestic violence case which is heard by a penal court, but not in open court (although their testimony will be read out in court), unless the court considers their presence necessary for finding the truth. This approach seems less protective of minors than the approach recommended by the Report (supra no 1.7). 2.5. According to the Bill, the public prosecutor dealing with an act of domestic violence may initiate “penal mediation” The Bill describes the details and consequences of the procedure and in this mostly follows the Report. In case of investigation of an act of domestic violence, the competent police authorities may not make public in any way the names of the victim and the perpetrator, their home address and any other data that may disclose their identity. The Bill also provides for certain measures of support to victims of domestic violence and requires that teachers who somehow find out that a pupil has been the victim of domestic violence must inform the school principal who must refer the case to the public prosecutor. The teachers may only be called as witnesses if the information cannot be proven by any other adequate means. However, generally speaking, the supporting measures do not seem sufficient. 2.6. The General Secretariat of Equality has invited NGOs and lawyers and any other interested parties to comment on the Bill until the beginning of January. HUNGARY Csilla Kollonay Lehoczky 1. Legislation 1.1 Draft Bill on the Amendment of the Equality Act In December 2005, a draft Bill was submitted to Parliament for the amendment of the Equality 22 Act. The proposed amendments are intended to harmonise the procedural rules of the Equal Treatment Authority (ETA) with the Act on Public Administration Procedures. It regulates cases where parallel procedures are initiated before both the Courts and the ETA, obliging the ETA to stay the proceedings and consider the case as res judicata once the Court has made a final and binding decision. The amendment further proposes some minor changes in the procedure before the ETA. The amendment also aims to provide a more detailed regulation of the status of the Equal Treatment Body (the consultative body elected to advise the ETA) and its members and elevates the rules concerning this Body to the level of an Act of Parliament rather than that of a Decree as was previously the case. Some changes were also proposed in respect of the permitted exceptions. Firstly this is to bring the provisions into line with the terminology used by the Constitutional Court and secondly to abolish the possibility of exceptions on the basis of colour, race, ethnicity or national origin. The proposed amendments further extend the scope of the Equal Opportunity Plan beyond employees and abolish the (never implemented) provisions concerning the “Equal Opportunities Programme of the Republic”. The draft Bill does not, however, remedy the gaps left in the implementation of Directive 2002/73; on the contrary, it is conspicuously silent on gender equality, apart from amending the definition of harassment as a type of violation of the equal treatment principle. Before, harassment was defined as “offensive behaviour” (targeting one of the attributes mentioned in the law and aiming to cause or causing an intimidating, hostile, humiliating, shaming or offensive environment) is now changed to “offensive behaviour of a sexual or other nature”. This might be a first covert attempt to bring the law into line with the Directive without referring to it, as full harmonisation would require many further legislative steps. 1.2 Draft Bill on Reproductive Procedures Available for Single Women To date, unmarried women are only allowed to undergo in vitro fertilization if they are part of a registered partnership. The draft Bill on Reproductive Procedures aims to make the treatment available for single women as well. As part of this proposal it was also debated whether the treatment should be available for fertile and infertile women equally. 22 Act no. CXXV of 2003 on equal treatment and the promotion of equal opportunities. 29
  29. 29. N° 1 / 2006 2. Case Law 2.1 Supreme Court Decision concerning the prohibition of dismissal during pregnancy The Supreme Court of the Hungarian Republic has made an important ruling concerning the protection of pregnant women against unfair dismissal. In its decision which was reported in September 2005 the Court held that the woman in question, who did not know of her pregnancy when she was dismissed, could claim compensation for unfair dismissal on grounds of pregnancy and damages arising out of the employer’s unlawful behaviour during the proceedings in the first instance. The employee in question had first brought a claim of unfair dismissal based on other grounds (incorrect justification of the dismissal) which claim had failed. However, just before the first instance proceedings came to an end, which was two years after her dismissal (by which time her child had already been born), she also claimed that she had already been pregnant at the time of her dismissal. The employer argued that as she had failed to argue pregnancy at any previous time during the proceedings she could not enter such a claim now and that this could in no way invalidate the dismissal or should at least result in a limitation if not the complete forfeiture of the employee’s entitlement to compensation. As opposed to the lower courts, the Supreme Court held that the Code of Civil Procedure permits the modification of a claim at any time during the proceedings in the first instance and that the law imposes no other limitations. For this reason, the late submission of the modified claim did not affect the unfairness of the dismissal or the right to compensation. In addition to this objective reasoning, the Supreme Court also considered that the employee had represented herself without the aid of an attorney and also that the pregnancy had been visible to all, including the employer, at the time of the first instance proceedings. ICELAND Herdís Thorgeirsdóttir 1. Legislative developments The main opposition party has announced its intention23 to introduce a proposal for legislation eradicating pay secrecy. The proposed legislation will explicitly ban pay secrecy within businesses. Employers will be prohibited from obliging their employees not to disclose their salaries. Employment contracts that demand pay secrecy are a violation of the gender equality law (Act no. 96/2000), according to the chairman of the party behind this proposal who, apart from the evidently discriminatory nature of the requirement not to discuss salaries, also mentions additional reasons such as poor work ethics. Pay secrecy is further regarded as going against gender equality law where this prohibits the waiving of any rights provided for in the law, among which the right to equal pay.24 2. Court cases On 8 December, the Supreme Court ruled25 that the Minister of Social Affairs (and gender equality) acted in violation of the administrative procedural law principle of proportionality by demanding the resignation of the director of the Centre for Gender Equality. The circumstances of the case were as follows. The director of the Centre, who was a woman of around 50 years old, had been appointed by the previous Minister of Social Affairs for a five-year term in 2000. During that time she was also chairman of the board of a municipal theatre and she had been involved in the appointment of a new (male) theatre director in 2002. This appointment was contested before the Equal Rights Complaints Committee which concluded that the gender equality law (Act no. 96/2000) prohibiting discrimination in access to work had been violated. A year later this decision was confirmed by the competent district court. The director of the Centre for Gender Equality subsequently asked for a meeting with the by that time new Minister of Social Affairs, who was a 40-year old man who was commonly considered as the next chairman of his political party. The Minister immediately made it clear at the start of their short meeting in his office that she did not have his support and advised her to resign from her post immediately. The director consented on the spot and the Minister issued a news release. Six months later the 23 12 December 2005. 24 RÚV 12 December 2005. 25 Supreme Court no. 175/2005. 30