Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC

15.7.2010

EN

Official Journal of the European Union

L 180/1

(1)

Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood (3) ensures application in Member States of the principle of equal treatment as between men and women engaged in an activity in a self-employed capacity, or contributing to the pursuit of such activity. As far as self-employed workers and spouses of self-employed workers are concerned, Directive 86/613/EEC has not been very effective and its scope should be reconsidered, as discrimination based on sex and harassment also occur in areas outside salaried work. In the interest of clarity, Directive 86/613/EEC should be replaced by this Directive.

(2)

In its Communication of 1 March 2006 entitled ‘Roadmap for equality between women and men’, the Commission announced that in order to improve governance of gender equality, it would review the existing Union gender equality legislation not included in the 2005 recast exercise with a view to updating, modernising and recasting where necessary. Directive 86/613/EEC was not included in the recasting exercise.

(3)

In its conclusions of 5 and 6 December 2007 on ‘Balanced roles of women and men for jobs, growth and social cohesion’, the Council called on the Commission to consider the need to revise, if necessary, Directive 86/613/EEC in order to safeguard the rights related to motherhood and fatherhood of self-employed workers and their helping spouses.

(4)

The European Parliament has consistently called on the Commission to review Directive 86/613/EEC, in particular so as to boost maternity protection for self-employed women and to improve the situation of spouses of self-employed workers.

(5)

The European Parliament has already stated its position on these matters in its resolution of 21 February 1997 on the situation of the assisting spouses of the self-employed (4).

(6)

In its Communication of 2 July 2008 entitled ‘Renewed Social Agenda: Opportunities, access and solidarity in 21st century Europe’, the Commission has affirmed the need to take action on the gender gap in entrepreneurship as well as to improve the reconciliation of private and professional life.

(7)

There are already a number of existing legal instruments for the implementation of the principle of equal treatment which cover self-employment activities, in particular Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (5) and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (6). This Directive should therefore not apply to the areas already covered by other directives.

(8)

This Directive is without prejudice to the powers of the Member States to organise their social protection systems. The exclusive competence of the Member States with regard to the organisation of their social protection systems includes, inter alia decisions on the setting up, financing and management of such systems and related institutions as well as on the substance and delivery of benefits, the level of contributions and the conditions for access.

(9)

This Directive should apply to self-employed workers and to their spouses or, when and in so far as recognised by national law, their life partners, where they, under the conditions laid down by national law, habitually participate in the activities of the business. In order to improve the situation for these spouses and, when and in so far as recognised by national law, the life partners of self-employed workers, their work should be recognised.

(10)

This Directive should not apply to matters covered by other Directives implementing the principle of equal treatment between men and women, notably 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 (7), inter alia, Article 5 of Directive 2004/113/EC on insurance and related financial services remains applicable.

(11)

To prevent discrimination based on sex, this Directive should apply to both direct and indirect discrimination. Harassment and sexual harassment should be considered discrimination and therefore prohibited.

(12)

This Directive should be without prejudice to the rights and obligations deriving from marital or family status as defined in national law.

(13)

The principle of equal treatment should cover the relationships between the self-employed worker and third parties within the remit of this Directive, but not relationships between the self-employed worker and his or her spouse or life partner.

(14)

In the area of self-employment, the application of the principle of equal treatment means that there must be no discrimination on grounds of sex, for instance in relation to the establishment, equipment or extension of a business or the launching or extension of any other form of self-employed activity.

(15)

Member States may, under Article 157(4) of the Treaty on the Functioning of the European Union, maintain or adopt measures providing for specific advantages in order to make it easier for the under-represented sex to engage in self-employed activities or to prevent or compensate for disadvantages in their professional careers. In principle, measures such as positive action aimed at achieving gender equality in practice should not be seen as being in breach of the legal principle of equal treatment between men and women.

(16)

It is necessary to ensure that the conditions for setting up a company between spouses or, when and in so far as recognised by national law, life partners, are not more restrictive than the conditions for setting up a company between other persons.

(17)

In view of their participation in the activities of the family business, the spouses or, when and in so far as recognised by national law, the life partners of self-employed workers who have access to a system for social protection, should also be entitled to benefit from social protection. Member States should be required to take the necessary measures to organise this social protection in accordance with national law. In particular, it is up to Member States to decide whether this social protection should be implemented on a mandatory or voluntary basis. Member States may provide that this social protection may be proportional to the participation in the activities of the self-employed worker and/or the level of contribution.

(18)

The economic and physical vulnerability of pregnant self-employed workers and pregnant spouses and, when and in so far as recognised by national law, pregnant life partners of self-employed workers, makes it necessary for them to be granted the right to maternity benefits. The Member States remain competent to organise such benefits, including establishing the level of contributions and all the arrangements concerning benefits and payments, provided the minimum requirements of this Directive are complied with. In particular, they may determine in which period before and/or after confinement the right to maternity benefits is granted.

(19)

The length of the period during which female self-employed workers and female spouses or, when and in so far as recognised by national law, female life partners of self-employed workers, are granted maternity benefits is similar to the duration of maternity leave for employees currently in place at Union level. In case the duration of maternity leave provided for employees is modified at Union level, the Commission should report to the European Parliament and the Council assessing whether the duration of maternity benefits for female self-employed workers and female spouses and life partners referred to in Article 2 should also be modified.

(20)

In order to take the specificities of self-employed activities into account, female self-employed workers and female spouses or, when and in so far as recognised by national law, female life partners of self-employed workers should be given access to any existing services supplying temporary replacement enabling interruptions in their occupational activity owing to pregnancy or motherhood, or to any existing national social services. Access to those services can be an alternative to or a part of the maternity allowance.

(21)

Persons who have been subject to discrimination based on sex should have suitable means of legal protection. To provide more effective protection, associations, organisations and other legal entities should be empowered to engage in proceedings, as 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.

(22)

Protection of self-employed workers and spouses of self-employed workers and, when and in so far as recognised by national law, the life partners of self-employed workers, from discrimination based on sex should be strengthened by the existence of a body or bodies in each Member State with competence to analyse the problems involved, to study possible solutions and to provide practical assistance to the victims. The body or bodies may be the same as those with responsibility at national level for the implementation of the principle of equal treatment.

(23)

This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions.

(24)

Since the objective of the action to be taken, namely to ensure a common high level of protection from discrimination in all the Member States, cannot be sufficiently achieved by the Member States and can be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. 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,

(a)

self-employed workers, namely all persons pursuing a gainful activity for their own account, under the conditions laid down by national law;

(b)

the spouses of self-employed workers or, when and in so far as recognised by national law, the life partners of self-employed workers, not being employees or business partners, where they habitually, under the conditions laid down by national law, participate in the activities of the self-employed worker and perform the same tasks or ancillary tasks.

(a)

the allowance which the person concerned would receive in the event of a break in her activities on grounds connected with her state of health and/or;

(b)

the average loss of income or profit in relation to a comparable preceding period subject to any ceiling laid down under national law and/or;

(c)

any other family related allowance established by national law, subject to any ceiling laid down under national law.

(a)

providing independent assistance to victims of discrimination in pursuing their complaints of discrimination, without prejudice to the rights of victims and of associations, organisations and other legal entities referred to in Article 9(2);

(b)

conducting independent surveys on discrimination;

(c)

publishing independent reports and making recommendations on any issue relating to such discrimination;

(d)

exchanging, at the appropriate level, the information available with the corresponding European bodies, such as the European Institute for Gender Equality.