L 303/16 EN Official Journal of the European Communities 2.12.2000

L 303/16 EN Official Journal of the European Communities 2.12.2000
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 International
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 workforce.
(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 favourable
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
(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.
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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.
(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 Guidelines
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
inter alia 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 workplace
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 framework
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
(1) OJ L 225, 12.8.1986, p. 43.
(2) OJ C 186, 2.7.1999, p. 3.
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(ii) 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 in order to eliminate disadvantages
entailed by such provision, criterion or practice.
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 thirdcountry
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 organisation's 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 organisation's 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
L 303/20 EN Official Journal of the European Communities 2.12.2000
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:
(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 plaintiffs.
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 workplace
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 nongovernmental
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, inter alia,
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
É. GUIGOU