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EN Official Journal of the European Communities 2.12.2000 L 303 16 COUNCIL DIRECTIVE 2000 78 EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

THE COUNCIL OF THE EUROPEAN UNION Having regard to the Treaty establishing the European Community and in particular Article 13 thereof

Having regard to the proposal from the Commission

1 Having regard to the Opinion of the European Parliament

2 Having regard to the Opinion of the Economic and Social Committee

3 Having regard to the Opinion of the Committee of the Regions

4 Whereas

1 In accordance with Article 6 of the Treaty on European Union the European Union is founded on the principles of liberty democracy respect for human rights and fundamental freedoms and the rule of law principles which are common to all Member States and it respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as general principles of Community law

2 The principle of equal treatment between women and men is well established by an important body of Community law in particular in Council Directive 76

207 EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment vocational training and promotion and working conditions 5

3 In implementing the principle of equal treatment the Community should in accordance with Article 3 2 of the EC Treaty aim to eliminate inequalities and to promote equality between men and women especially since women are often the victims of multiple discrimination

4 The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights the United Nations Convention on the Elimination of All Forms of Discrimination against Women United Nations Covenants on Civil and Political Rights and on Economic Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms to which all Member States are signatories Convention No 111 of the Inter national Labour Organisation ILO prohibits discrimination in the field of employment and occupation

5 It is important to respect such fundamental rights and freedoms This Directive does not prejudice freedom of association including the right to establish unions with others and to join unions to defend one s interests

6 The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination including the need to take appropriate action for the social and economic integration of elderly and disabled people

7 The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States To this end a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled trained and adaptable work force

8 The Employment Guidelines for 2000 agreed by the European Council at Helsinki on 10 and 11 December 1999 stress the need to foster a labour market favour able to social integration by formulating a coherent set of policies aimed at combating discrimination against groups such as persons with disability They also emphasise the need to pay particular attention to supporting older workers in order to increase their participation in the labour force

9 Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic cultural and social life and to realising their potential

10 On 29 June 2000 the Council adopted Directive 2000 43 EC 6 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. That Directive already provides protection against such discrimination in the field of employment and occupation

11 Discrimination based on religion or belief disability age or sexual orientation may undermine the achievement of the objectives of the EC Treaty in particular the attainment of a high level of employment and social protection raising the standard of living and the quality of life economic and social cohesion and solidarity and the free movement of persons

12 To this end any direct or indirect discrimination based on religion or belief disability age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third country nationals and their access to employment and occupation

Notes:

1 OJ C 177 E 27.6.2000 p 42

2 Opinion delivered on 12 October 2000 not yet published in the Official Journal

3 OJ C 204 18.7.2000 p 82

4 OJ C 226 8.8.2000 p 1

5 OJ L 39 14.2.1976 p 40

6 OJ L 180 19.7.2000 p 22 1

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13 This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty nor to any kind of payment by the State aimed at providing access to employment or maintaining employment

14 This Directive shall be without prejudice to national provisions laying down retirement ages

15 The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies in accordance with rules of national law or practice Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence

16 The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability

17 This Directive does not require the recruitment promotion maintenance in employment or training of an individual who is not competent capable and available to perform the essential functions of the post concerned or to undergo the relevant training without prejudice to the obligation to provide reasonable accommodation for people with disabilities

18 This Directive does not require in particular the armed forces and the police prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services

19 Moreover in order that the Member States may continue to safeguard the combat effectiveness of their armed forces they may choose not to apply the provisions of this Directive concerning disability and age to all or part of their armed forces The Member States which make that choice must define the scope of that derogation

20 Appropriate measures should be provided i e effective and practical measures to adapt the workplace to the disability for example adapting premises and equipment patterns of working time the distribution of tasks or the provision of training or integration resources

21 To determine whether the measures in question give rise to a disproportionate burden account should be taken in particular of the financial and other costs entailed the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance

22 This Directive is without prejudice to national laws on marital status and the benefits dependent thereon

23 In very limited circumstances a difference of treatment may be justified where a characteristic related to religion or belief disability age or sexual orientation constitutes a genuine and determining occupational requirement when the objective is legitimate and the requirement is proportionate Such circumstances should be included in the information provided by the Member States to the Commission

24 The European Union in its Declaration No 11 on the status of churches and non confessional organisations annexed to the Final Act of the Amsterdam Treaty has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non confessional organisations With this in view Member States may maintain or lay down specific provisions on genuine legitimate and justified occupational requirements which might be required for carrying out an occupational activity

25 The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guide lines and encouraging diversity in the workforce However differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States It is therefore essential to distinguish between differences in treatment which are justified in particular by legitimate employment policy labour market and vocational training objectives and discrimination which must be prohibited

26 The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief disability age or sexual orientation and such measures may permit organisations of persons of a particular religion or belief disability age or sexual orientation where their main object is the promotion of the special needs of those persons

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27 In its Recommendation 86 379 EEC of 24 July 1986 on the employment of disabled people in the Community 1 the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities 2 affirmed the importance of giving specific attention interalia to recruitment retention training and lifelong learning with regard to disabled persons

28 This Directive lays down minimum requirements thus giving the Member States the option of introducing or maintaining more favourable provisions The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State

29 Persons who have been subject to discrimination based on religion or belief disability age or sexual orientation should have adequate means of legal protection To provide a more effective level of protection associations or legal entities should also be empowered to engage in proceedings as the Member States so determine either on behalf or in support of any victim without prejudice to national rules of procedure concerning representation and defence before the courts

30 The effective implementation of the principle of equality requires adequate judicial protection against victimisation

31 The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and for the principle of equal treatment to be applied effectively the burden of proof must shift back to the respondent when evidence of such discrimination is brought However it is not for the respondent to prove that the plaintiff adheres to a particular religion or belief has a particular disability is of a particular age or has a particular sexual orientation

32 Member States need not apply the rules on the burden of proof to proceedings in which it is for the court or other competent body to investigate the facts of the case The procedures thus referred to are those in which the plaintiff is not required to prove the facts which it is for the court or competent body to investigate

33 Member States should promote dialogue between the social partners and within the framework of national practice with non governmental organisations to address different forms of discrimination at the work place and to combat them

34 The need to promote peace and reconciliation between the major communities in Northern Ireland necessitates the incorporation of particular provisions into this Directive

35 Member States should provide for effective proportionate and dissuasive sanctions in case of breaches of the obligations under this Directive

36 Member States may entrust the social partners at their joint request with the implementation of this Directive as regards the provisions concerning collective agreements provided they take any necessary steps to ensure that they are at all times able to guarantee the results required by this Directive

37 In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty the objective of this Directive namely the creation within the Community of a level playing field as regards equality in employment and occupation cannot be sufficiently achieved by the Member States and can therefore by reason of the scale and impact of the action be better achieved at Community level In accordance with the principle of proportionality as set out in that Article this Directive does not go beyond what is necessary in order to achieve that objective

HAS ADOPTED THIS DIRECTIVE CHAPTER I GENERAL PROVISIONS

Article 1 Purpose

The purpose of this Directive is to lay down a general frame work for combating discrimination on the grounds of religion or belief disability age or sexual orientation as regards employment and occupation with a view to putting into effect in the Member States the principle of equal treatment

Article 2 Concept of discrimination

1 For the purposes of this Directive the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1

2 For the purposes of paragraph 1 a direct discrimination shall be taken to occur where one person is treated less favourably than another is has been or would be treated in a comparable situation on any of the grounds referred to in Article 1

b indirect discrimination shall be taken to occur where an apparently neutral provision criterion or practice would put persons having a particular religion or belief a particular disability a particular age or a particular sexual orientation at a particular disadvantage compared with other persons unless

i that provision criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary or as regards persons with a particular disability the employer or any person or organisation to whom this Directive applies is obliged under national legislation to take appropriate measures in line with the principles contained in Article 5 i order to eliminate disadvantages entailed by such provision criterion or practice

1 OJ L 225 12.8.1986 p 43

2 OJ C 186 2.7.1999 p 3 3

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3 Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1 when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating hostile degrading humiliating or offensive environment In this context the concept of harassment may be defined in accordance with the national laws and practice of the Member States

4 An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1 5 This Directive shall be without prejudice to measures laid down by national law which in a democratic society are necessary for public security for the maintenance of public order and the prevention of criminal offences for the protection of health and for the protection of the rights and freedoms of others

Article 3 Scope

1 Within the limits of the areas of competence conferred on the Community this Directive shall apply to all persons as regards both the public and private sectors including public bodies in relation to a conditions for access to employment to self employment or to occupation including selection criteria and recruitment conditions whatever the branch of activity and at all levels of the professional hierarchy including promotion

b access to all types and to all levels of vocational guidance vocational training advanced vocational training and retraining including practical work experience

c employment and working conditions including dismissals and pay

d membership of and involvement in an organisation of workers or employers or any organisation whose members carry on a particular profession including the benefits provided for by such organisations

2 This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons in the territory of Member States and to any treatment which arises from the legal status of the third country nationals and stateless persons concerned

3 This Directive does not apply to payments of any kind made by state schemes or similar including state social security or social protection schemes 4 Member States may provide that this Directive in so far as it relates to discrimination on the grounds of disability and age shall not apply to the armed forces

Article 4 Occupational requirements

1 Notwithstanding Article 2 1 and 2 Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out such a characteristic constitutes a genuine and determining occupational requirement provided that the objective is legitimate and the requirement is proportionate

2 Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief a difference of treatment based on a person s religion or belief shall not constitute discrimination where by reason of the nature of these activities or of the context in which they are carried out a person s religion or belief constitute a genuine legitimate and justified occupational requirement having regard to the organisations ethos This difference of treatment shall be implemented taking account of Member States constitutional provisions and principles as well as the general principles of Community law and should not justify discrimination on another ground Provided that its provisions are otherwise complied with this Directive shall thus not prejudice the right of churches and other public or private organisations the ethos of which is based on religion or belief acting in conformity with national constitutions and laws to require individuals working for them to act in good faith and with loyalty to the organisations ethos

Article 5 Reasonable accommodation for disabled persons

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities reasonable accommodation shall be provided This means that employers shall take appropriate measures where needed in a particular case to enable a person with a disability to have access to participate in or advance in employment or to undergo training unless such measures would impose a disproportionate burden on the employer This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned

Article 6 Justification of differences of treatment on grounds of age

1 Notwithstanding Article 2

2 Member States may provide that differences of treatment on grounds of age shall not constitute discrimination if within the context of national law they are objectively and reasonably justified by a legitimate aim including legitimate employment policy labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary Such differences of treatment may include among others:

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a) the setting of special conditions on access to employment and vocational training employment and occupation including dismissal and remuneration conditions for young people older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection

b) the fixing of minimum conditions of age professional experience or seniority in service for access to employment or to certain advantages linked to employment c the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement

2 Notwithstanding Article 2 2 Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits including the fixing under those schemes of different ages for employees or groups or categories of employees and the use in the context of such schemes of age criteria in actuarial calculations does not constitute discrimination on the grounds of age provided this does not result in discrimination on the grounds of sex

Article 7 Positive action

1 With a view to ensuring full equality in practice the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1

2 With regard to disabled persons the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment

Article 8 Minimum requirements

1 Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive

2 The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive

CHAPTER II REMEDIES AND ENFORCEMENT

Article 9 Defence of rights

1 Member States shall ensure that judicial and or administrative procedures including where they deem it appropriate conciliation procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them even after the relationship in which the discrimination is alleged to have occurred has ended

2 Member States shall ensure that associations organisations or other legal entities which have in accordance with the criteria laid down by their national law a legitimate interest in ensuring that the provisions of this Directive are complied with may engage either on behalf or in support of the complainant with his or her approval in any judicial and or administrative procedure provided for the enforcement of obligations under this Directive

3 Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment

Article 10 Burden of proof

1 Member States shall take such measures as are necessary in accordance with their national judicial systems to ensure that when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish before a court or other competent authority facts from which it may be presumed that there has been direct or indirect discrimination it shall be for the respondent to prove that there has been no breach of the principle of equal treatment

2 Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plain tiffs

3 Paragraph 1 shall not apply to criminal procedures

4 Paragraphs 1 2 and 3 shall also apply to any legal proceedings commenced in accordance with Article 9 2

5 Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case

Article 11 Victimisation

Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment

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Article 12 Dissemination of information

Member States shall take care that the provisions adopted pursuant to this Directive together with the relevant provisions already in force in this field are brought to the attention of the persons concerned by all appropriate means for example at the workplace throughout their territory

Article 13 Social dialogue

1 Member States shall in accordance with their national traditions and practice take adequate measures to promote dialogue between the social partners with a view to fostering equal treatment including through the monitoring of work place practices collective agreements codes of conduct and through research or exchange of experiences and good practices

2 Where consistent with their national traditions and practice Member States shall encourage the social partners without prejudice to their autonomy to conclude at the appropriate level agreements laying down anti discrimination rules in the fields referred to in Article

3 which fall within the scope of collective bargaining These agreements shall respect the minimum requirements laid down by this Directive and by the relevant national implementing measures

Article 14 Dialogue with non governmental organisations

Member States shall encourage dialogue with appropriate non governmental organisations which have in accordance with their national law and practice a legitimate interest in contributing to the fight against discrimination on any of the grounds referred to in Article 1 with a view to promoting the principle of equal treatment

CHAPTER III PARTICULAR PROVISIONS

Article 15 Northern Ireland

1 In order to tackle the under representation of one of the major religious communities in the police service of Northern Ireland differences in treatment regarding recruitment into that service including its support staff shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation

2 In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation CHAPTER IV FINAL PROVISIONS

Article 16 Compliance

Member States shall take the necessary measures to ensure that

a) any laws regulations and administrative provisions contrary to the principle of equal treatment are abolished

b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements internal rules of undertakings or rules governing the independent occupations and professions and workers and employers organisations are or may be declared null and void or are amended

Article 17 Sanctions

Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied The sanctions which may comprise the payment of compensation to the victim must be effective proportionate and dissuasive Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them

Article 18 Implementation

Member States shall adopt the laws regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest or may entrust the social partners at their joint request with the implementation of this Directive as regards provisions concerning collective agreements In such cases Member States shall ensure that no later than 2 December 2003 the social partners introduce the necessary measures by agreement the Member States concerned being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive They shall forthwith inform the Commission thereof

In order to take account of particular conditions Member States may if necessary have an additional period of 3 years from 2 December 2003 that is to say a total of 6 years to implement the provisions of this Directive on age and disability discrimination In that event they shall inform the Commission forthwith Any Member State which chooses to use this additional period shall report annually to the Commission on the steps it is taking to tackle age and disability discrimination and on the progress it is making towards implementation The Commission shall report annually to the Council

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When Member States adopt these measures they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication The methods of making such reference shall be laid down by Member States

Article 19 Report

1 Member States shall communicate to the Commission by 2 December 2005 at the latest and every five years thereafter all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive

2 The Commission s report shall take into account as appropriate the viewpoints of the social partners and relevant non governmental organisations In accordance with the principle of gender mainstreaming this report shall interalia provide an assessment of the impact of the measures taken on women and men In the light of the information received this report shall include if necessary proposals to revise and update this Directive

Article 20 Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities

Article 21 Addressees This Directive is addressed to the Member States

Done at Brussels 27 November 2000 For the Council The President ֹ GUIGOU 7

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Search d	European Year of People with Disabilities Document Body Page Navigation Panel Page 1 2 EN Official Journal of the European Communities 2.12.2000 L 303 16 COUNCIL DIRECTIVE 2000 78 EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation THE COUNCIL OF THE EUROPEAN UNION Having regard to the Treaty establishing the European Community and in particular Article 13 thereof Having regard to the proposal from the Commission 1 Having regard to the Opinion of the European Parliament 2 Having regard to the Opinion of the Economic and Social Committee 3 Having regard to the Opinion of the Committee of the Regions 4 Whereas 1 In accordance with Article 6 of the Treaty on European Union the European Union is founded on the principles of liberty democracy respect for human rights and fundamental freedoms and the rule of law principles which are common to all Member States and it respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States as general principles of Community law 2 The principle of equal treatment between women and men is well established by an important body of Community law in particular in Council Directive 76 207 EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment vocational training and promotion and working conditions 5 3 In implementing the principle of equal treatment the Community should in accordance with Article 3 2 of the EC Treaty aim to eliminate inequalities and to promote equality between men and women especially since women are often the victims of multiple discrimination 4 The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights the United Nations Convention on the Elimination of All Forms of Discrimination against Women United Nations Covenants on Civil and Political Rights and on Economic Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms to which all Member States are signatories Convention No 111 of the Inter national Labour Organisation ILO prohibits discrimination in the field of employment and occupation 5 It is important to respect such fundamental rights and freedoms This Directive does not prejudice freedom of association including the right to establish unions with others and to join unions to defend one s interests 6 The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination including the need to take appropriate action for the social and economic integration of elderly and disabled people 7 The EC Treaty includes among its objectives the promotion of coordination between employment policies of the Member States To this end a new employment chapter was incorporated in the EC Treaty as a means of developing a coordinated European strategy for employment to promote a skilled trained and adaptable work force 8 The Employment Guidelines for 2000 agreed by the European Council at Helsinki on 10 and 11 December 1999 stress the need to foster a labour market favour able to social integration by formulating a coherent set of policies aimed at combating discrimination against groups such as persons with disability They also emphasise the need to pay particular attention to supporting older workers in order to increase their participation in the labour force 9 Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic cultural and social life and to realising their potential 10 On 29 June 2000 the Council adopted Directive 2000 43 EC 6 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. That Directive already provides protection against such discrimination in the field of employment and occupation 11 Discrimination based on religion or belief disability age or sexual orientation may undermine the achievement of the objectives of the EC Treaty in particular the attainment of a high level of employment and social protection raising the standard of living and the quality of life economic and social cohesion and solidarity and the free movement of persons 12 To this end any direct or indirect discrimination based on religion or belief disability age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community This prohibition of discrimination should also apply to nationals of third countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third country nationals and their access to employment and occupation Notes: 1 OJ C 177 E 27.6.2000 p 42 2 Opinion delivered on 12 October 2000 not yet published in the Official Journal 3 OJ C 204 18.7.2000 p 82 4 OJ C 226 8.8.2000 p 1 5 OJ L 39 14.2.1976 p 40 6 OJ L 180 19.7.2000 p 22 1 1 Page 2 3 13 This Directive does not apply to social security and social protection schemes whose benefits are not treated as income within the meaning given to that term for the purpose of applying Article 141 of the EC Treaty nor to any kind of payment by the State aimed at providing access to employment or maintaining employment 14 This Directive shall be without prejudice to national provisions laying down retirement ages 15 The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies in accordance with rules of national law or practice Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence 16 The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability 17 This Directive does not require the recruitment promotion maintenance in employment or training of an individual who is not competent capable and available to perform the essential functions of the post concerned or to undergo the relevant training without prejudice to the obligation to provide reasonable accommodation for people with disabilities 18 This Directive does not require in particular the armed forces and the police prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services 19 Moreover in order that the Member States may continue to safeguard the combat effectiveness of their armed forces they may choose not to apply the provisions of this Directive concerning disability and age to all or part of their armed forces The Member States which make that choice must define the scope of that derogation 20 Appropriate measures should be provided i e effective and practical measures to adapt the workplace to the disability for example adapting premises and equipment patterns of working time the distribution of tasks or the provision of training or integration resources 21 To determine whether the measures in question give rise to a disproportionate burden account should be taken in particular of the financial and other costs entailed the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance 22 This Directive is without prejudice to national laws on marital status and the benefits dependent thereon 23 In very limited circumstances a difference of treatment may be justified where a characteristic related to religion or belief disability age or sexual orientation constitutes a genuine and determining occupational requirement when the objective is legitimate and the requirement is proportionate Such circumstances should be included in the information provided by the Member States to the Commission 24 The European Union in its Declaration No 11 on the status of churches and non confessional organisations annexed to the Final Act of the Amsterdam Treaty has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non confessional organisations With this in view Member States may maintain or lay down specific provisions on genuine legitimate and justified occupational requirements which might be required for carrying out an occupational activity 25 The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guide lines and encouraging diversity in the workforce However differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States It is therefore essential to distinguish between differences in treatment which are justified in particular by legitimate employment policy labour market and vocational training objectives and discrimination which must be prohibited 26 The prohibition of discrimination should be without prejudice to the maintenance or adoption of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief disability age or sexual orientation and such measures may permit organisations of persons of a particular religion or belief disability age or sexual orientation where their main object is the promotion of the special needs of those persons 2 Page 3 4 27 In its Recommendation 86 379 EEC of 24 July 1986 on the employment of disabled people in the Community 1 the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities 2 affirmed the importance of giving specific attention interalia to recruitment retention training and lifelong learning with regard to disabled persons 28 This Directive lays down minimum requirements thus giving the Member States the option of introducing or maintaining more favourable provisions The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State 29 Persons who have been subject to discrimination based on religion or belief disability age or sexual orientation should have adequate means of legal protection To provide a more effective level of protection associations or legal entities should also be empowered to engage in proceedings as the Member States so determine either on behalf or in support of any victim without prejudice to national rules of procedure concerning representation and defence before the courts 30 The effective implementation of the principle of equality requires adequate judicial protection against victimisation 31 The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and for the principle of equal treatment to be applied effectively the burden of proof must shift back to the respondent when evidence of such discrimination is brought However it is not for the respondent to prove that the plaintiff adheres to a particular religion or belief has a particular disability is of a particular age or has a particular sexual orientation 32 Member States need not apply the rules on the burden of proof to proceedings in which it is for the court or other competent body to investigate the facts of the case The procedures thus referred to are those in which the plaintiff is not required to prove the facts which it is for the court or competent body to investigate 33 Member States should promote dialogue between the social partners and within the framework of national practice with non governmental organisations to address different forms of discrimination at the work place and to combat them 34 The need to promote peace and reconciliation between the major communities in Northern Ireland necessitates the incorporation of particular provisions into this Directive 35 Member States should provide for effective proportionate and dissuasive sanctions in case of breaches of the obligations under this Directive 36 Member States may entrust the social partners at their joint request with the implementation of this Directive as regards the provisions concerning collective agreements provided they take any necessary steps to ensure that they are at all times able to guarantee the results required by this Directive 37 In accordance with the principle of subsidiarity set out in Article 5 of the EC Treaty the objective of this Directive namely the creation within the Community of a level playing field as regards equality in employment and occupation cannot be sufficiently achieved by the Member States and can therefore by reason of the scale and impact of the action be better achieved at Community level In accordance with the principle of proportionality as set out in that Article this Directive does not go beyond what is necessary in order to achieve that objective HAS ADOPTED THIS DIRECTIVE CHAPTER I GENERAL PROVISIONS Article 1 Purpose The purpose of this Directive is to lay down a general frame work for combating discrimination on the grounds of religion or belief disability age or sexual orientation as regards employment and occupation with a view to putting into effect in the Member States the principle of equal treatment Article 2 Concept of discrimination 1 For the purposes of this Directive the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 2 For the purposes of paragraph 1 a direct discrimination shall be taken to occur where one person is treated less favourably than another is has been or would be treated in a comparable situation on any of the grounds referred to in Article 1 b indirect discrimination shall be taken to occur where an apparently neutral provision criterion or practice would put persons having a particular religion or belief a particular disability a particular age or a particular sexual orientation at a particular disadvantage compared with other persons unless i that provision criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary or as regards persons with a particular disability the employer or any person or organisation to whom this Directive applies is obliged under national legislation to take appropriate measures in line with the principles contained in Article 5 i order to eliminate disadvantages entailed by such provision criterion or practice 1 OJ L 225 12.8.1986 p 43 2 OJ C 186 2.7.1999 p 3 3 3 Page 4 5 3 Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1 when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating hostile degrading humiliating or offensive environment In this context the concept of harassment may be defined in accordance with the national laws and practice of the Member States 4 An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1 5 This Directive shall be without prejudice to measures laid down by national law which in a democratic society are necessary for public security for the maintenance of public order and the prevention of criminal offences for the protection of health and for the protection of the rights and freedoms of others Article 3 Scope 1 Within the limits of the areas of competence conferred on the Community this Directive shall apply to all persons as regards both the public and private sectors including public bodies in relation to a conditions for access to employment to self employment or to occupation including selection criteria and recruitment conditions whatever the branch of activity and at all levels of the professional hierarchy including promotion b access to all types and to all levels of vocational guidance vocational training advanced vocational training and retraining including practical work experience c employment and working conditions including dismissals and pay d membership of and involvement in an organisation of workers or employers or any organisation whose members carry on a particular profession including the benefits provided for by such organisations 2 This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons in the territory of Member States and to any treatment which arises from the legal status of the third country nationals and stateless persons concerned 3 This Directive does not apply to payments of any kind made by state schemes or similar including state social security or social protection schemes 4 Member States may provide that this Directive in so far as it relates to discrimination on the grounds of disability and age shall not apply to the armed forces Article 4 Occupational requirements 1 Notwithstanding Article 2 1 and 2 Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out such a characteristic constitutes a genuine and determining occupational requirement provided that the objective is legitimate and the requirement is proportionate 2 Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief a difference of treatment based on a person s religion or belief shall not constitute discrimination where by reason of the nature of these activities or of the context in which they are carried out a person s religion or belief constitute a genuine legitimate and justified occupational requirement having regard to the organisations ethos This difference of treatment shall be implemented taking account of Member States constitutional provisions and principles as well as the general principles of Community law and should not justify discrimination on another ground Provided that its provisions are otherwise complied with this Directive shall thus not prejudice the right of churches and other public or private organisations the ethos of which is based on religion or belief acting in conformity with national constitutions and laws to require individuals working for them to act in good faith and with loyalty to the organisations ethos Article 5 Reasonable accommodation for disabled persons In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities reasonable accommodation shall be provided This means that employers shall take appropriate measures where needed in a particular case to enable a person with a disability to have access to participate in or advance in employment or to undergo training unless such measures would impose a disproportionate burden on the employer This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned Article 6 Justification of differences of treatment on grounds of age 1 Notwithstanding Article 2 2 Member States may provide that differences of treatment on grounds of age shall not constitute discrimination if within the context of national law they are objectively and reasonably justified by a legitimate aim including legitimate employment policy labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary Such differences of treatment may include among others: 4 Page 5 6 a) the setting of special conditions on access to employment and vocational training employment and occupation including dismissal and remuneration conditions for young people older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection b) the fixing of minimum conditions of age professional experience or seniority in service for access to employment or to certain advantages linked to employment c the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement 2 Notwithstanding Article 2 2 Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits including the fixing under those schemes of different ages for employees or groups or categories of employees and the use in the context of such schemes of age criteria in actuarial calculations does not constitute discrimination on the grounds of age provided this does not result in discrimination on the grounds of sex Article 7 Positive action 1 With a view to ensuring full equality in practice the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1 2 With regard to disabled persons the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment Article 8 Minimum requirements 1 Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive 2 The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive CHAPTER II REMEDIES AND ENFORCEMENT Article 9 Defence of rights 1 Member States shall ensure that judicial and or administrative procedures including where they deem it appropriate conciliation procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them even after the relationship in which the discrimination is alleged to have occurred has ended 2 Member States shall ensure that associations organisations or other legal entities which have in accordance with the criteria laid down by their national law a legitimate interest in ensuring that the provisions of this Directive are complied with may engage either on behalf or in support of the complainant with his or her approval in any judicial and or administrative procedure provided for the enforcement of obligations under this Directive 3 Paragraphs 1 and 2 are without prejudice to national rules relating to time limits for bringing actions as regards the principle of equality of treatment Article 10 Burden of proof 1 Member States shall take such measures as are necessary in accordance with their national judicial systems to ensure that when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish before a court or other competent authority facts from which it may be presumed that there has been direct or indirect discrimination it shall be for the respondent to prove that there has been no breach of the principle of equal treatment 2 Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plain tiffs 3 Paragraph 1 shall not apply to criminal procedures 4 Paragraphs 1 2 and 3 shall also apply to any legal proceedings commenced in accordance with Article 9 2 5 Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case Article 11 Victimisation Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment 5 Page 6 7 Article 12 Dissemination of information Member States shall take care that the provisions adopted pursuant to this Directive together with the relevant provisions already in force in this field are brought to the attention of the persons concerned by all appropriate means for example at the workplace throughout their territory Article 13 Social dialogue 1 Member States shall in accordance with their national traditions and practice take adequate measures to promote dialogue between the social partners with a view to fostering equal treatment including through the monitoring of work place practices collective agreements codes of conduct and through research or exchange of experiences and good practices 2 Where consistent with their national traditions and practice Member States shall encourage the social partners without prejudice to their autonomy to conclude at the appropriate level agreements laying down anti discrimination rules in the fields referred to in Article 3 which fall within the scope of collective bargaining These agreements shall respect the minimum requirements laid down by this Directive and by the relevant national implementing measures Article 14 Dialogue with non governmental organisations Member States shall encourage dialogue with appropriate non governmental organisations which have in accordance with their national law and practice a legitimate interest in contributing to the fight against discrimination on any of the grounds referred to in Article 1 with a view to promoting the principle of equal treatment CHAPTER III PARTICULAR PROVISIONS Article 15 Northern Ireland 1 In order to tackle the under representation of one of the major religious communities in the police service of Northern Ireland differences in treatment regarding recruitment into that service including its support staff shall not constitute discrimination insofar as those differences in treatment are expressly authorised by national legislation 2 In order to maintain a balance of opportunity in employment for teachers in Northern Ireland while furthering the reconciliation of historical divisions between the major religious communities there the provisions on religion or belief in this Directive shall not apply to the recruitment of teachers in schools in Northern Ireland in so far as this is expressly authorised by national legislation CHAPTER IV FINAL PROVISIONS Article 16 Compliance Member States shall take the necessary measures to ensure that a) any laws regulations and administrative provisions contrary to the principle of equal treatment are abolished b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements internal rules of undertakings or rules governing the independent occupations and professions and workers and employers organisations are or may be declared null and void or are amended Article 17 Sanctions Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied The sanctions which may comprise the payment of compensation to the victim must be effective proportionate and dissuasive Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them Article 18 Implementation Member States shall adopt the laws regulations and administrative provisions necessary to comply with this Directive by 2 December 2003 at the latest or may entrust the social partners at their joint request with the implementation of this Directive as regards provisions concerning collective agreements In such cases Member States shall ensure that no later than 2 December 2003 the social partners introduce the necessary measures by agreement the Member States concerned being required to take any necessary measures to enable them at any time to be in a position to guarantee the results imposed by this Directive They shall forthwith inform the Commission thereof In order to take account of particular conditions Member States may if necessary have an additional period of 3 years from 2 December 2003 that is to say a total of 6 years to implement the provisions of this Directive on age and disability discrimination In that event they shall inform the Commission forthwith Any Member State which chooses to use this additional period shall report annually to the Commission on the steps it is taking to tackle age and disability discrimination and on the progress it is making towards implementation The Commission shall report annually to the Council 6 Page 7 When Member States adopt these measures they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication The methods of making such reference shall be laid down by Member States Article 19 Report 1 Member States shall communicate to the Commission by 2 December 2005 at the latest and every five years thereafter all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive 2 The Commission s report shall take into account as appropriate the viewpoints of the social partners and relevant non governmental organisations In accordance with the principle of gender mainstreaming this report shall interalia provide an assessment of the impact of the measures taken on women and men In the light of the information received this report shall include if necessary proposals to revise and update this Directive Article 20 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities Article 21 Addressees This Directive is addressed to the Member States Done at Brussels 27 November 2000 For the Council The President ֹ GUIGOU 7 Page Navigation Panel 1 2 3 4 5 6 7
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European Year of People with Disabilities