Move to reform sex equality law

Date: 07/03/1996

By Michael Mann

SOCIAL Affairs Commissioner Pádraig Flynn is to recommend changing EU laws on sex equality to make it possible for member states to allow positive action in favour of women.

But the amendments proposed by the Commissioner have been carefully drafted to avoid running into fresh trouble with the European Court of Justice (ECJ).

After lengthy discussions within the services, Flynn has decided to call for significant amendments to the disputed Article 2(4) of the 1976 directive on equal treatment for men and women.

This will stress that “measures giving preference as regards access to employment or promotion” to members of either sex should be permitted “provided they do not preclude an assessment of particular circumstances” and that no candidate is discriminated against if he or she has greater qualifications than others.

The move comes as a direct response to fears that last October's ruling by the European Court that German horticulturist Eckhard Kalanke had been discriminated against would deem all positive employment action programmes within the EU illegal.

Commission officials are anxious to interpret the ruling in its narrowest possible sense, stressing that only rigid quota systems are to be outlawed.

Alongside these modifications to the legal basis of EU equality policies, Flynn is to publish a communication explaining his interpretation of the Kalanke judgement. This will stress his support for flexible systems aimed at increasing the representation of women in the job market.

It will pick out examples of good practice from the international sphere, particularly the United States, as well as specific schemes already up and running in member states.

“These might include subsidy schemes payable to companies to encourage the recruitment of women,” suggested an official.

Quotas would not be completely out of the question, as long as they were introduced to take account of specific extenuating circumstances, according to officials.

The clear-cut and limited interpretation being given to Kalanke by Flynn has been greeted with relief within the Commission services themselves, where a senior official confirmed that “there will be no direct effect on equal opportunities policies within the Commission”.

Flynn's long-awaited response to the Kalanke judgement was originally due to be discussed by the Commission next week, but the debate has been postponed until at least 20 March because officials must first discuss the question with the social partners on 13 March. However, Commission officials have stressed that their work is, to all intents and purposes, complete and that the discussions with employers and unions are unlikely to result in major changes to their report.

Despite confidence within Directorate-General V (social affairs), there is no guarantee that the proposals will enjoy a smooth ride past the other Commissioners.

Officials are anticipating a fair amount of resistance from, among others, Trade Commissioner Sir Leon Brittan and some of his conservative colleagues. Despite her years of campaigning for women's rights, there is also a feeling that Consumer Affairs Commissioner Emma Bonino believes this to be the wrong approach to promoting equality.

But Flynn remains confident, having received support from the group of equality Commissioners, which includes Germany's Monika Wulf-Mathies, Finland's Erkki Liikanen, Sweden's Anita Gradin, Denmark's Ritt Bjerregaard and Commission President Jacques Santer.

Looking further ahead, the Commission is hoping to encourage member states to build a more lasting commitment to the fight against discrimination into the revamped treaty at the Intergovernmental Conference.

Its submission to the IGC, formally adopted last week, called for the conference to “incorporate in the treaty provisions banning discrimination of any kind - particularly on the basis of sex, thereby extending the provisions on equal pay - and condemning racism and xenophobia”.