a) The Charter of Fundamental Rights of the European Union
Article 23 of the Charter provides that equality between women and men must be ensured in all areas, including employment, work and pay. It also stipulates that the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
Article 33 of the Charter provides that in order to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity and the right to paid maternity leave and to parental leave following the birth or adoption of a child.
b) The legislative powers and their limits
According to Article 19 of the Treaty on the Functioning of the European Union (TFEU), the Union is empowered to take appropriate action to combat discrimination, including based on sex.
According to Article 153 TFEU, the Union is empowered to adopt measures, including directives setting minimum requirements, to support and complement the activities of the Member States, inter alia, in the field of equality between men and women with regard to labour market opportunities and treatment at work. Directives adopted on the basis of Article 153 TFEU shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings. Article 157(3) TFEU empowers the Union legislature to adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. Article 157(4) TFEU specifies that the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
c) Existing measures
European Union Directives prohibit discrimination and promote gender equality in employment and occupation, in self-employment, in the access to and supply of goods and services and in social security, and lay down rights related to maternity and parental leave.
Directive 2006/54/EC of the European Parliament and of the Council (12) guarantees equal treatment of men and women in access to employment, including promotion, and to vocational training; working conditions, including pay; and occupational social security schemes. Commission Recommendation 2014/124/EU(13) aims to strengthen the Principle of equal pay between men and women through transparency.
Council Directive 79/7/EEC(14) provides for equal treatment of men and women in matters of social security such as statutory social security schemes which provide protection against sickness, invalidity, accidents at work and occupational diseases, unemployment and risks related to old age; and social assistance which supplements or replaces the basic schemes. Council Directive 2004/113/EC(15) guarantees equal treatment between men and women in access to and supply of goods and services. Directive 2010/41/EU of the European Parliament and of the Council(16) clarifies that the principle of equal treatment between men and women applies to self-employed workers and where spouses or life partners of a self-employed worker participate in his or her activities.
Council Directive 92/85/EEC(17) contains measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding and establishes the right to maternity leave for the duration of 14 weeks and guarantees protection against dismissal during the period from the beginning of pregnancy to the end of the maternity leave.
Council Directive 2010/18/EU(18) establishes the right to parental leave and sets out minimum requirements for that leave (4 months for each parent, at least one month of which cannot be transferred to the other parent) as well as protection of employment rights and when returning to work and the right to leave from work on grounds of force majeure.
(12) 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 (recast) OJ L 204, 26.7.2006, p. 23.
(13) Commission Recommendation of 7 March 2014 on strengthening the Principle of equal pay between men and women through transparency, OJ L 69, 8.3.2014, p. 112.
(14) 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, OJ L 6, 10.1.1979, p. 24.
(15) 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 OJ L 373, 21.12.2004, p. 37.
(16) 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, OJ L 180, 15.7.2010, p.1.
(17) Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC), OJ L 348, 28.11.1992, p. 1.
(18) Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, OJ L 68, 18.3.2010, p. 13.