3. The Community legal framework


In order to understand the evolution that has taken place at the European level during the last two decades, we must have a closer look at the interplay among the legal framework (1).

The first Community rule concerning equality between men and women is article 119 of the Rome Treaty, the basic document of EC law; the article is rather narrow in its focus, since it formulates the principle of equal pay for equal work of men and women (2). Nevertheless, as a result of the ECJ's bold teleological reading of the article, it has received wide application, and has produced important legal effects in the national legal systems of the member States. The increasing importance of this aspect of equality has convinced the Community legislator that having a more detailed legal discipline is necessary, and this was provided in 1975 by a new directive on the application of the principle of equal pay to male and female workers (3). The importance of this principle in Community law is further emphasized by its inclusion in article 6 of the annex to the Maastricht Treaty concerning social policy (4).

In 1976 the Community passed another important directive which, unlike the first, is very broad in its compass, since it deals with equality of men and women in their access to work, training, promotion and working conditions. This is certainly the Community measure on sex equality that has had the most important consequences on the legal systems of the member states, entailing the revision of several pre-existing legislations and practices (5). Due to the innovations introduced, this is also one of the Community measures that has given rise to the highest number of controversies before the ECJ. The directive creates a series of legal rights and duties that specify and implement the general principle of equal treatment (art. 1), and bans any kind of discrimination, direct and indirect, related to sex (6), providing only for a limited and specific number of objective exceptions (7), among which are the possibility of affirmative actions aimed at removing pre-existing disparities. The directive compels member States to review their existing legislations in order to render them compatible with the Community system, and to take all other steps necessary for their citizens to gain protection of their rights, via access to the court systems and by other legal means (e.g. rules that ban dismissal for reasons to do with the sex of the workers). In order to ensure a workable system, the directive compels the member states to inform the Commission on existing legislation in the field, and of all amendments made to it, so that the Community can monitor developments in order to ensure the correct implementation of its law. This directive has been an important step forward in the protection of women's rights, because it lays down fundamental principles and rules concerning equal treatment (8), and because it deals comprehensively with a sector, that of the labour market and working conditions, crucial in providing women with equal opportunities.

Other subsequent measures have dealt with more specific aspects; notably directive 79/7/EEC concerning equal treatment in social security (9), and directive 92/85/EEC on the protection of pregnant and breast-feeding workers (10).

In the more limited field of affirmative actions two Community legal instruments are particularly important. One is the already mentioned directive 76/207, which expressly lists among the exceptions to the equal treatment principle measures designed to remove disparities in opportunities between men and women, i.e. affirmative action plans (art. 2(4)). The problem has also been addressed specifically by a recommendation of 1984 (11), in which the European Council recognizes that all rules providing for equality between men and women are insufficient to guarantee real equality of opportunities, and member states are therefore recommended to adopt affirmative action policies in order to eliminate previous negative effects of discrimination and to stimulate participation by women in all working sectors and positions (12). Although Community recommendations are soft law, i.e. they do not bind states, they have strong persuasive force, and this instrument shows that there is growing awareness of the need to find new legal strategies to enhance women's participation in working life (13). Finally, the subject is dealt with marginally by the agreement on social policy annexed to the Maastricht treaty, whose art. 6 (3) (which contains the principle of equal pay) specifies that member states can keep or adopt measures that provide special benefits to facilitate the entrance of women in the labour market, or to compensate for existing disadvantages in their professional careers, thereby pointing up the lawfulness of the use of affirmative actions (14).


(1) For a survey of the subject of equality sponsored by the Commission s. D. Meulders, R. Plasman, V. Vander Stricht, Position of Women on the Labour Market in the European Community, (Darmouth, 1993).
(2) At the time of its formulation it was clear that the primary purpose of article 119 was to ensure equal conditions for all enterprises competing in the internal market, by levelling the labout costs, and eliminating the advantages of those enterprises based in member countries where it was possible to give lower pay to women employees (which, in the 1950s, were especially Italy and The Netherlands). S. L. Charpentier, "L'arret "Kalanke", expression du discours dualiste de l'égalité", EUI Working Paper RSC No. 96/18, Florence, 1996 (forthcoming also in Rev. trim. dr. eur. 1996).
(3) Directive 75/117/EEC.
(4) Note that the United Kingdom has opted out of this agreement, and is therefore not bound by it.
(5) For example, in order to implement directive 76/207 in the Italian legal system, in 1977 Parliament passed an act on the equality of treatment between men and women in workplace (l. 9 December 1977, n. 903), the first Italian statute to deal comprehensively with the matter.
(6) The directive has been recently applied by the ECJ to a case concerning a transexual: the Court has ruled that dimissal because of the change of sex by an employee amounts to sex discrimination, and is therefore prohibited by art. 5 (1) of directive 76/207/EEC: C-13/94, April 30, 1996 nyr; (1996) Guida al dir., May 18, 1996, 105-109.
(7) Art. 2 lists three kinds of exceptions: jobs and training for which sex is a relevant characteristic; provisions that regulate pregnancy and maternity; provisions aimed at promoting equal opportunities for men and women by removing disparities. The last provision is extremely relevant for the subject dealt in this paper, since it is the legal basis used for affirmative action plans.
(8) The principle of equal treatment between men and women has also been included in the Community charter of fundamental social rights of workers, of December 1989 (art. 16).
(9) Directive 86/378/EEC deals with professional social security, i.e. security measures alternative or supplementary to the public social security system.
(10) Pregnancy was already treated for a more limited sector by directive 86/613/CEE, which contained rules on the maternity protection for independent workers in agriculture (beside other rules concerning equal treatment at large).
(11) Recommendation of the Council, 13 December 1984, on the promotion of affirmative actions for women (84/635/EEC). The Community has also issued various triennal programmes concerning equal opportunites for women.
(12) The recommendation lists several different means of intervention: the disseminaton of information at all levels, the gathering of information and analysis on the existing situation, adaptation of working conditions to women's needs, the exchange of information among all Community member states.
(13) Italy has followed this trend by enacting in 1991 a statute concerning affirmative actions for the achievement of equality between men and women in the workplace (l. 10 April 1991, n. 125), which has shifted the emphasis from equal treatment (the leitmotiv of the previous l. 903/1977) to equal opportunities. S. L. Gaeta, L. Zoppoli (eds.), Il diritto diseguale - La legge sulle azioni positive, (Torino, 1992); S. Scarponi (ed.), Le parti opportunità nella rappresentanza politica e nell'accesso al lavoro - I sistemi di "quote" al vaglio di legittimità", (forthcoming, Trento, 1996).
(14) For a general overiview of the subject at the Community and international level, s. Positive Action: Equal Opportunities ofr Women in Employment: A Guide, (Luxembourg, Office for Official Publications of the European Communities, 1988); M. Verwilghen, F. von Prondzynski (eds.), Equality in Law Between Men and Women in the European Community, (Dordrecht, Boston; Louzembourg, Office for Official Publications of the European Communities, 1994); J. Faundez, Affirmative Action: International Perspectives, (Geneva, International Labour Office, 1994).