Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services
Article 1 – Purpose
The purpose of this Directive is to lay down a framework for combating discrimination based on sex in access to and supply of goods and services, with a view to putting into effect in the Member States the principle of equal treatment between men and women.
Article 2 – Definitions
For the purposes of this Directive, the following definitions shall apply:
(a) direct discrimination: where one person is treated less favourably, on grounds of sex, than another is, has been or would be treated in a comparable situation;
(b) indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary;
(c) harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
(d) sexual harassment: where any form of unwanted physical, verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.
Article 4 – Principle of equal treatment
1. For the purposes of this Directive, the principle of equal treatment between men and women shall mean that
(a) there shall be no direct discrimination based on sex, including less favourable treatment of women for reasons of pregnancy and maternity;
(b) there shall be no indirect discrimination based on sex.
2. This Directive shall be without prejudice to more favourable provisions concerning the protection of women as regards pregnancy and maternity.
3. Harassment and sexual harassment within the meaning of this Directive shall be deemed to be discrimination on the grounds of sex and therefore prohibited. A person’s rejection of, or submission to, such conduct may not be used as a basis for a decision affecting that person.
4. Instruction to direct or indirect discrimination on the grounds of sex shall be deemed to be discrimination within the meaning of this Directive.
5. This Directive shall not preclude differences in treatment, if the provision of the goods and services exclusively or primarily to members of one sex is justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
Article 6 – Positive action
With a view to ensuring full equality in practice between men and women, 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 sex.
Article 8 – 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 the 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 introduce into their national legal systems such measures as are necessary to ensure real and effective compensation or reparation, as the Member States so determine, for the loss and damage sustained by a person injured as a result of discrimination within the meaning of this Directive, in a way which is dissuasive and proportionate to the damage suffered. The fixing of a prior upper limit shall not restrict such compensation or reparation.
3. 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, 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.
4. Paragraphs 1 and 3 shall be without prejudice to national rules on time limits for bringing actions relating to the principle of equal treatment.
Article 10 – Victimisation
Member States shall introduce into their national legal systems such measures as are necessary to protect persons from any adverse treatment or adverse consequence as a reaction to a complaint or to legal proceedings aimed at enforcing compliance with the principle of equal treatment.
Article 12 – Bodies for the promotion of equal treatment
1. Member States shall designate and make the necessary arrangements for a body or bodies for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds of sex. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals’ rights, or the implementation of the principle of equal treatment.
2. Member States shall ensure that the competencies of the bodies referred to in paragraph 1 include:
(a) without prejudice to the rights of victims and of associations, organisations or other legal entities referred to in Article 8(3), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination;
(b) conducting independent surveys concerning discrimination;
(c) publishing independent reports and making recommendations on any issue relating to such discrimination.
Council Directive 2004/113/EC aims to implement equal treatment of men and women with a view to extending the principle of equal treatment beyond the sphere of the employment market and professional life to other areas of everyday life.
The directive establishes a framework for combatting all gender discrimination in access and supply of goods and services, in both the public and private sectors.
The directive applies to goods and services offered to the public, regardless of the persons concerned (that is to say, whatever the personal circumstances of the service recipient) and which are offered outside of the private and family spheres. The term ‘services’ indicates services provided in exchange for remuneration.
The directive does not apply to either the content of media or advertising, or education.
Ban on discrimination in the field of goods and services: in principle, the directive prohibits:
- any less favourable treatment of men or women by reason of their gender;
- any less favourable treatment of women due to pregnancy or maternity;
- harassment, sexual harassment or any incitement to discriminate with regard to the offer or supply of goods or services.
Differential treatment can only be accepted if it is justified by a legitimate objective such as, for example protection of victims of sexual harassment (in case of creating women’s refuges), freedom of association (in the context of membership of unisex private clubs) or organisation of unisex sporting activities. Any limitation must be appropriate and necessary.
The principle of equal treatment does not preclude taking affirmative action to prevent or compensate for gender inequalities in the area of goods and services.
The directive establishes only minimal requirements to allow EU countries to be able to maintain higher or more extensive levels of protection.
Application to the field of insurance: the directive prohibits taking gender into consideration when calculating insurance premiums and benefits in insurance agreements signed after 21 December 2007. Nonetheless, the directive provided for the option for EU countries not to apply this prohibition in cases where gender was a determining factor in risk assessment and based on relevant actuarial and statistical data. However, the Court of Justice of the European Union, in its ruling on the Test-Achats case (C-236/09) declared invalid the derogation from the principle of equal treatment which allowed EU countries to differentiate between men and women with regard to insurance premiums and benefits, with effect from 21 December 2012.
Henceforth, for all new agreements signed since this date, the principle of a unisex tariff applies to the insurance sector. In order to facilitate implementation of the Court’s ruling, the Commission adopted Guidelines on the application of the directive to the insurance sector.
In any case, the costs associated with pregnancy and maternity must not lead to differences in terms of premiums and benefits.
Bodies promoting equal treatment: each EU country charges one or several bodies with promoting and monitoring equal treatment of men and women at national level. These bodies are responsible for (i) offering victims independent assistance, (ii) carrying out independent studies, (iii) publishing independent reports and making recommendations.
Defending victims’ rights: the directive obligates EU countries to ensure that victims have access to a judicial and/or administrative procedure to safeguard their rights, and that victims can obtain the appropriate reparation or compensation. Associations, organisations and other legal persons with a legitimate interest are also able to engage in a judicial and/or administrative procedure to allow victims to safeguard their rights and to obtain reparation or compensation.
Furthermore, EU countries must put in place sanctions in case of infringement of the principle of equal treatment.
Equality between men and women is a fundamental principle of the European Union, laid down in Articles 2 and 3 of the Treaty on European Union. Gender discrimination may constitute an obstacle to full and successful integration of men and women into economic and social life.