Agreement in sight over shift in burden of proof

Date: 28/11/1996

By Michael Mann

THE Irish presidency is pushing for political agreement next week on plans to make employers share the burden of proof when workers claim they have been the victims of sexual discrimination.

But the chances of a separate agreement on the European Commission's proposals to alter EU laws on positive employment action in favour of under-represented groups such as women have suffered a serious set-back.

When social affairs ministers meet in Brussels next Monday (2 December), they are expected to approve a revised version of the Commission's proposals to shift the burden of proof in sex discrimination cases.

Under the plan, it would no longer be left entirely up to the plaintiff to prove unfair treatment. The final deal now being put together is likely to include elements of both the proposal made by Social Affairs Commissioner Pádraig Flynn earlier this year and the original scheme, which would have been agreed back in 1993 had the UK not vetoed it.

The same problem will not arise this time around as the measure is due to be adopted under the Maastricht Treaty's Social Protocol, requiring only a qualified majority in favour and excluding the UK.

But discussions on the issue have been far from plain sailing, with some member states suggesting the Commission's proposal could interfere in national legal procedures.

“The burden of proof has become something of a double-edged sword. A majority of countries are clearly in favour of the principle of shifting the balance, but some are worried about questions of national competence,” said one official.

Despite the Irish presidency's enthusiasm for polishing off a political deal on the issue before its tenure of the EU presidency runs out, nothing can be formalised until the European Parliament delivers its opinion. This is not expected until the new year.

Discussions on the follow-up to the European Court of Justice ruling on the Kalanke case have been even more vexed. As a result, ministers will do little more than repeat their well-known views on the subject at next week's meeting.

The proposal to change the EU's 1976 equal treatment directive followed the ECJ ruling that the German city state of Bremen's positive discrimination policy was illegal.

Flynn wanted to underline that positive action was still possible, to prevent the Kalanke judgement from scaring countries away from equality measures, while building the Court's findings into the proposed law. But member states have expressed widely divergent views on Flynn's approach, which must win the unanimous backing of all 15 to become law.

Sweden has led the way in calling for positive action to go further than the Commission suggests, while other member states believe the Intergovernmental Conference is a more suitable forum for such talks. Officials say Germany simply wants to rework the directive to include the precise wording from Kalanke .

A group of countries including Belgium, Ireland, Italy, the Netherlands, Austria and Finland have reacted positively to the Swedish initiative, but some believe there is no need to amend the legislation because a combination of the existing directive and jurisprudence from the Court should give clear guidance on what is and is not permissible.

To complicate matters further, the Council of Ministers' legal service has taken a similar view. Some officials believe Ireland's insistence on a detailed discussion of the question will simply harden attitudes and could even kill off Flynn's initiative.