European Parliament
2014-2019
Committee on Women's Rights and Gender Equality
13.7.2016
WORKING DOCUMENT
on the application of Council Directive 2004/113/EC implementing the
principle of equal treatment between men and women in the access to and
supply of goods and services
Committee on Women's Rights and Gender Equality
Rapporteur: Agnieszka Kozłowska-Rajewicz
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United in diversity
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I.
The context of the directive and the state of play of its implementation
The primary objective of the Directive 2004/1131 has been to extend the principle of equal
treatment between women and men, as enshrined in the Treaty on the Functioning of the
European Union (TFEU) and other relevant directives2, beyond the realm of employment and
the labour market to the field of access to and supply of goods and services in both the public
and private sectors3, as well as to strengthen the principle of gender mainstreaming in these
areas. The directive prohibits direct (Article 2) and indirect discrimination (Article 3),
including less favourable treatment of women on grounds of pregnancy and maternity (Article
5(3)). Furthermore, harassment and sexual harassment as well as instructions to discriminate,
fall under the scope of the directive (Article 4) and are prohibited on its grounds.
Whilst goods and services are not defined in the directive itself, there is a reference to Article
57 of the TFEU, which stipulates that services are “normally provided for remuneration, in so
far as they are not governed by the provisions relating to freedom of movement for goods,
capital and persons”. While the established case law of the CJEU defines goods as “products
which can be valued in money and which are capable as such of forming the subject of
commercial transaction”4, the only instances where differential treatment is allowed under the
directive are those where a justified and legitimate aim can be identified, such as women-only
shelters for victims of gender-based violence (Article 4(5)). Furthermore, media, advertising
and education as well as matters of employment and occupation that are covered by other
relevant laws fall outside of the scope of the Directive 2004/113. Article 4(3) also excludes
those services that are provided for in the private sphere, in a smaller circle of individuals.
In its Report on the application of the directive5, the Commission has concluded, based on
their consultations with Member States (MS), national equality bodies and Equinet, civil
society organisations as well as other experts, that all MS have transposed the directive into
their domestic laws. While the application of the Test-Achats ruling, seen by the Commission
as the principal challenge for the MS, has been accomplished, other problems with effective
implementation still remain. Among the most common issues are the overly restrictive
understanding of goods and services, broad and sometimes unclear justifications of unequal
treatment on the basis of Article 4(5) as well as insufficient protection of women during
maternity and pregnancy. In addition, another significant challenge concerns the unclear
status of harassment cases involving a third party harasser who is not the primary provider of
goods and services, notably pertaining to services offered via digital platforms. The
Rapporteur takes the stances that whilst the implementation of the directive is overall on a
good track, its application is effectively not uniform across MS and work still remains to be
1
Directive 2004/113/EC (Implementing the principle of equal treatment between men and women in the access
to and supply of goods and services)
2
Such as Directive 2000/78/EC (Employment Equality Directive) or 2006/54/EC (Equal Pay and Equal
Treatment)
3 EPRS (2016). E. Caracciolo di Torella and B. McLellal, Research paper on the implementation across the
Member States of the Directive 2004/113/EC on the principle of equal treatment between men and women in the
access to and supply of goods and services
4
Case 7/68, Judgement of the Court of 10 December 1968, Commission of the European Communities v Italian
Republic
5
Commission (2015). Report on the application of Council Directive 2004/113/EC implementing the principle
of equal treatment between men and women in the access to and supply of goods and services
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done in certain sectors. Ahead of recommendations within the upcoming report, the
Rapporteur aims in this working document to identify the most important gaps and challenges
in each of the relevant sectors and in relation to other areas of implementation of the directive.
II.
Sectorial analysis
Transport sector and public spaces
Public transport principally raises the question of harassment and sexual harassment in
particular, prohibited under Article 4(3). Harassment experienced by women in transport is a
widespread problem across the MS and as surveys suggest, 1 out of 6 women1 had
experienced unwanted sexual behaviour during train journeys. One of the challenges, also
highlighted in the Commission’s report, is the question of the responsibility of service
providers in instances of harassment and in preventing it. While the prohibition of harassment
is embedded in national legislation across MS, the interpretation of third party harassment
incidents that occur outside of employment constitutes one of the challenges for the MS.
Furthermore, in relation to the Article 4(2) of the directive, where the Commission report
states that no difficulties were signalled, it seems that not all MS legislation includes specific
definitions of pregnancy and maternity as grounds for gender discrimination. This is
particularly relevant in the transport sector and concerning public spaces as women, and in
some cases men in the context of paternity, regularly face physical access barriers, the
insufficiency of baby changing facilities and finally discrimination of women on grounds of
breastfeeding in the premises of service providers. The Rapporteur intends to demonstrate
good practices in the field that are consistent with the principle of gender mainstreaming,
while also highlighting the risk of relying on short-cut solutions which limit women’s
liberties, such as, for example, women-only carriages.
Sharing economy
In her analysis, the Rapporteur wishes to go beyond traditional services that were considered
at the time of drafting the directive and highlight new areas of application, in particular the
digitalisation of certain services and sectors. The implementation of the directive and the
extent to which it applies to services provided within the digitalised collaborative or sharing
economy remains uncertain. As regards gender discrimination or harassment, most online
platforms explicitly declare a zero-tolerance policy, with expulsion from platforms when
national laws are broken, however, the status of their responsibility remains unclear. The
Rapporteur notes that while the collaborative economy offers great benefits to both providers
and users, there are some challenges and good practices to be identified to ensure full
protection and prevention of incidents of gender-based harassment. While the current state of
play as regards digital collaborative economy sector does not allow for clear determination of
the nature of the services they provide, the Rapporteur would be interested to understand how
gender equality and the sharing economy can positively reinforce and what best practices can
be identified ahead.
Health care sector
The definition of services under the directive is based on the Article 57 of the TFEU and it
1
The Telegraph (2015). Available at:
http://www.telegraph.co.uk/news/worldnews/europe/france/11545643/100-per-cent-of-Frenchwomen-victimsof-sexual-harassment-on-public-transport.html, as well as Project Guardian, available at:
http://www.btp.police.uk/advice_and_info/how_we_tackle_crime/project_guardian.aspx
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should as such be possible to rely on case-law on the free movement of services to determine
whether health care services fall under the scope of the directive. The Commission in its
application report confirmed that this is the case and pointed that a service, and in particular
services within the health sector, must not necessarily be paid by those for whom it is
performed. Nevertheless, the directive itself also stipulates that differences in the provision of
these services do not constitute discrimination when they result from physical differences
between women and men. The Rapporteur intends to explore ways in which equal treatment
of women and men can be enhanced in this sector and how to better integrate gender
mainstreaming in this context.
Differential treatment in the leisure and entertainment sector
The largest share of issues addressed and complaints received by the equality bodies in the
MS regard the leisure and entertainment sector. They notably concern justification of unequal
treatment based on the derogation provided in Article 4(5) that leads, for example, to
differential pricing (such as different entree fees to nightclubs), refusals to provide services
(such as women-only gyms) and finally differing conditions of access for women and men
(such as a women-only floor in a hotel). As reported by the Commission itself, derogations in
Article 4(5) of the directive have been a source for ambiguity and case law does not offer a
unified direction of interpretation. The Rapporteur aims to draw attention to how this
derogation has been broadly and differently interpreted by the MS, including their equality
bodies, and how these opposing views influence gender equality in the provision of services.
The examples of differing interpretation should not, according to the Rapporteur, lead to the
conclusion that Article 5(4) contributes to ambiguity only and the intention of the report is
also to explore how the Article can applied to promote positive action as a means to advance
gender equality, as it has been the case in a limited number of MS.
Financial services sectors
Originally, the Article 5(2) allowed MS for differential treatment of women and men under
defined circumstances, but this derogation was declared invalid with effect from 21 December
2012 by the CJEU, in the Test-Achats1 ruling. As a result, insurers were no longer allowed to
use gender-based actuarial factors in calculating premiums and benefits for all of their
contracts and MS were instructed to adapt their national legislation to comply with the ruling.
Whilst all MS have adjusted their regulations accordingly, there are still cases where its
efficiency could be critically analysed, such as the continuous utilisation of gender-based
actuarial factors in certain insurances. Furthermore, differential treatment in travel insurance
might still prevail since these types of insurances normally cover personal liability and
emergency medical expenses, but pregnancy-related costs, such as cancellation due of
childbirth are often not covered2. In addition to the analysis of the gaps in the application, the
Rapporteur wishes to highlight the need to collect gender-disaggregated data on the impact of
the shift to unisex pricing, which has been identified as a challenge by the Commission.
III.
Enhancing the application of the directive
The role of equality bodies
Article 12 of the directive requires MS to appoint equality bodies whose principal task in the
context of the directive is to ensure “the promotion, analysis, monitoring and support of equal
1
2
Case C-236/09, Judgement of the Court of 1 March 2011, Test-Achats
Irish Department of Justice and Equality (2007). Report of the Working Group on Insurance-related issues.
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treatment of all persons without discrimination on the grounds of sex”. Whilst the
Commission report concludes that all MS have established these bodies, their effectiveness in
fulfilling designated goals tends to vary. As an input to the Commission’s report, Equinet
provided an assessment1 that revealed several difficulties of some equality bodies in ensuring
full realisation of their tasks in practice. For example, some equality bodies were not able to
represent individuals through litigation, while other experienced deficits of in-house experts
to deal with technical questions or specific resources for understanding the broader context of
the application of the principle of equal treatment in the area of goods and services. The
Rapporteur intends to identify best practices for enhancing the work of equality bodies and
identify potential areas for cooperation.
Gender mainstreaming and awareness- raising
While significant progress has been achieved as regards equal treatment of women and men in
the field of goods and services, the remaining gaps in practical application need to be
addressed. The Rapporteur believes that awareness raising among all parties concerned,
including service providers and customers, as well as sectorial gender-mainstreaming
recommendations are crucial for practical application of the principle of equal treatment to
everyday experiences within the area of supply and access to goods and services.
1
Equinet (2014). Implementation of Directive 2004/113/EC, Gender equality in the access to goods and
services: the role of equality bodies
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