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| Procedure : 2008/0192(COD) |
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Document stages in plenary
| Document selected : A6-0258/2009 | ||||||
Texts tabled : A6-0258/2009 |  | Debates : PV 04/05/2009 - 16CRE 04/05/2009 - 16 |  | Votes : PV 06/05/2009 - 6.5CRE 06/05/2009 - 6.5 Explanations of votes Explanations of votes |  | Texts adopted : P6_TA(2009)0364 |
| REPORT ***I |
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| 7 April 2009 |
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on the proposal for a directive of the European Parliament and of the Council on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Directive 86/613/EEC (COM(2008)0636 – C6-0341/2008 – 200/0192(COD)) | ||||||||||||||||
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 DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION |
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on the proposal for a directive of the European Parliament and of the Council on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Directive 86/613/EEC (COM(2008)0636 – C6-0341/2008 – 200/0192(COD)) (Codecision procedure: first reading) The European Parliament, – having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0636), – having regard to Article 251(2) and Article 141(3) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0341/2008), – having regard to Rule 51 of its Rules of Procedure, – having regard to the report of the Committee on Women's Rights and Gender Equality and the opinions of the Committee on Employment and Social Affairs and the Committee on Legal Affairs (A6-0258/2009), 1. Approves the Commission proposal as amended; 2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text; 3. Instructs its President to forward its position to the Council and Commission.
creation by women should be mentioned.
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| EXPLANATORY STATEMENT |
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The directive of 11 December 1986(1) has a long and less than glorious history. The Commission’s initial, 1984 proposal(2) was far more ambitious than the text the Council eventually adopted in 1986. In the resolutions and reports it adopted in the 1990s, the European Parliament made repeated calls for that directive to be improved. In its 1997 report(3) on the situation of assisting spouses of the self-employed, Parliament regretted that the weak wording of Directive 86/613/EEC had led to little progress for assisting spouses of self-employed workers in terms of recognition of their work and adequate social protection. It called for an amended directive that would be more binding on Member States and would include: - compulsory registration of assisting spouses so that they are no longer invisible workers; - the obligation on Member States to take the necessary measures to ensure that assisting spouses are able to take out insurance cover for health care and retirement pensions. Although Parliament reminded it on numerous occasions of its very concrete proposals to ensure equal treatment between men and women engaged in an activity in a self-employed capacity, including their assisting spouses, it was not until October 2008 that the Commission proposed repealing Directive 86/613/EEC and submitted to the European Parliament and the Council a proposal for a directive(4) on the specific legal base of Article 141 of the EC Treaty. It covers only those aspects not yet covered by other directives adopted in the meantime to implement the principle of equal treatment between men and women.(5) It should be noted that the 1986 directive was based on Articles 100 and 235 and not on Article 119 of the Treaty of Rome, which did not apply to self-employed workers, whereas Article 141(3) henceforth applies to employment and work and therefore covers self-employed workers. The Commission’s decision to repeal the 1986 directive and to propose a new legislative instrument on the application of the principle of equal treatment between men and women engaged in a self-employed activity or contributing to the pursuit of that activity is based on the report on the implementation of the 1986 directive, experts’ reports and impact assessments.(6) All those reports and studies have shown that the 1986 directive was ineffective and that its practical results did not match up to its objective, either for self-employed workers or for their assisting spouses, despite the fact that the legal status of the two groups obviously differs. It is true that since 1986 the situation of self-employed workers and their assisting spouses and of life-partners recognised as such by national law, in agriculture, the craft industry and trade, and in the liberal professions has improved in most Member States. That applies to social security cover and maternity protection. The impact assessment(7) accompanying the new proposal for a directive gives an idea of the directive’s scope as regards both the self-employed and assisting spouses and recognised life partners. Self-employed workers Self-employment remains a minority form of employment in Europe, accounting for 16% of the working population. Only one third of the 32.5 million self-employed workers are women,(8) although women seem keener to accept self-employment to avoid unemployment or better to reconcile professional and family life. Around 71% of self-employed women work in the services sector. In agriculture, the percentage of women and men is similar, at 21% and 20% respectively. The EPEC report(9) found the sharpest rise (10% between 1998 and 2006) in the number of self-employed women in the Grand Duchy of Luxembourg, followed by Greece, Italy and Cyprus (5%). The proposal to tackle the obstacles to women’s access to self-employment, among others by adopting measures providing for specific advantages in order to make it easier for the under-represented sex to engage in self-employed activities should, therefore, be supported, but in a reinforced form as a positive action (recital 10, Article 4 of the proposal for a directive). The proposal on the establishment of a company (Article 5) is of key importance, because it provides for binding measures to ensure that it is no longer forbidden under national law to set up a company between spouses or life partners. Under the single provision, it will no longer be prohibited for self-employed persons to employ their spouse or partner in the company as an employee, thereby offering an exemplary solution to the problem of the independent social security cover of the assisting spouse and making it possible to enter the salary actually paid to the spouse as operating expenditure provided both that it represents the normal pay for services duly rendered and that all legally compulsory taxes and contributions are paid. As regards maternity protection for self-employed women, the maternity leave system must not be modelled on that applicable to employees. In most cases, women who run a company or manage a farm cannot allow themselves a break in their activity for a period of many weeks. Yet if they so request they should be granted maternity leave of at least four weeks before and four weeks after giving birth, in order to protect the health of both mother and child. In the case of employees, this minimum period is currently compulsory. As regards maternity benefit, it would be advisable to provide that it is at least equivalent to sickness benefit, assuming of course that provision is made for that benefit under national law, which is apparently not the case in all Member States. In 19 Member States self-employed women are now entitled to 14 weeks’ paid maternity leave. Depending on the way the benefit is funded (by the State or on the basis of contributions paid by the self-employed worker), that can give rise to distortions of competition. Where national replacement services exist, it would be sensible to provide for the self-employed to have access to those services as an alternative to cash benefits. Assisting spouses and recognised life partners In the EU of 27 there are an estimated 3.75 million assisting spouses (or relatives), accounting for around 11.5% of all self-employed workers in the European Union.(10) About 11% of self-employed workers say a relative assists them. In most cases, the assisting spouse or recognised partner is female. Assisting spouses do not form a homogenous group. This type of occupation is found mainly in farming, the craft industry and trade, but also in the liberal professions. In some Member States, assisting spouses may have their own status. In France, for example, they can choose between three options: employed spouses, associated spouses or collaborating spouses, and be enrolled in the commercial registry or the registry of trades. In most Member States, they still do not have a status in their own name. Their work is not recognised. They do not receive any social security protection separate from that of their spouse. In most Member States they have derived rights, i.e. they are covered (like their children) by the health insurance of the self-employed worker and are entitled to a widow/widower’s pension on the death of the self-employed worker. The question is what happens in the event of divorce, especially after many years of marriage. Spouses run a high risk of poverty if they have no social protection in their own name because they do not have any status and do not have the proof of the years worked that would entitle them to a retirement or disablement pension. The 1986 directive did not achieve its objective, even though some Member States do allow assisting spouses to join a social security scheme, on a voluntary basis, usually the scheme covering self-employed workers, where such a scheme exists. Some Member States make it compulsory for assisting spouses to join social protection schemes (France since July 2007, Belgium since 2006). In Portugal too, it is compulsory for assisting spouses to join the self-employed workers’ scheme and they are entitled to the benefits provided under that scheme. In the Grand Duchy of Luxembourg, there has been a compulsory insurance scheme for assisting spouses and relatives working in the agricultural sector since 1974. The same scheme exists for the craft industry, trade and the liberal professions, although it also provides for many derogations and exemptions. In Finland, all residents are automatically covered by the social security system, regardless of their type of occupation. In Germany, assisting spouses are regarded as co-owners of the business or farm concerned and are entitled to the status of self-employed workers. The experience gained by these Member States has shown that compulsory affiliation is the only effective system. Directive 86/613/EEC provides only for the voluntary affiliation of assisting spouses to social protection schemes. It has, therefore, proved ineffectual. Yet the Commission’s new proposal still provides for a voluntary system. Article 6 of the proposal stipulates that ‘assisting spouses can, at their request, benefit from at least an equivalent level of protection as self-employed workers under the same conditions applicable to self-employed workers’. The Commission’s proposal therefore provides for the affiliation of assisting spouses of self-employed workers on a voluntary and contributory basis. The rapporteur is convinced that this approach is ineffectual and will in no way improve the situation of assisting spouses. The experience gained in Member States where affiliation is voluntary has shown that when assisting spouses are offered the option to join or not join a pension scheme, in most cases they will not join. They fear that the contributions involved would represent a major outlay. Few assisting spouses realise that not joining such a scheme would have serious consequences in the event of divorce or the death of the affiliated spouse. For all those reasons, the rapporteur is convinced that it should be made compulsory for assisting spouses to be covered by social protection schemes. The Union must adopt more binding legislation that sets out a framework of minimum guarantees for assisting spouses, within which Member States may choose the most appropriate means of adapting their systems. Recital 13 and Article 6 of the proposal for a directive must, therefore, be amended, primarily in order to ensure that assisting spouses benefit from the same scheme as self-employed workers, with no exemptions, i.e. compulsory affiliation, even if that means having to calculate the contributions at a standard rate. It is also vital to ensure that these social contributions are tax-deductible, perhaps by regarding them as operating expenses. Maternity leave must be adapted to the special situation of assisting spouses and not modelled on that of employees, as we argued above for self-employed workers. For assisting spouses, the decision whether or not to stop working in a family business before and after childbirth depends also on whether benefits are paid during this break in activity, which it is recommended should last at least four weeks before and after childbirth. The incentive to do so depends mainly on whether this maternity leave is funded. As is the case in the Grand Duchy of Luxembourg, it should be funded entirely by the State and not by employers and employees or self-employed workers and their spouses, as that would also avoid any distortions of competition in the single market. Recognition of the work of assisting spouses In its proposal for a directive replacing the 1986 directive, the Commission plays down the importance of recognising the work done by assisting spouses. Article 7 of the earlier directive provided that ‘Member States shall undertake to examine under what conditions recognition of the work of [assisting spouses] may be encouraged’. In its proposal to revise the directive, the Commission has deleted that article completely. In this connection, we must draw attention to the fact that it is difficult to recognise the contribution of assisting spouses to business profit unless registration is made compulsory. It is certainly legitimate to recognise their work in terms of providing compensation in the event of divorce or separation. It is also true that, given the complex nature of the subject, regulatory measures will impact on matrimonial, fiscal and company law. Equality bodies It is difficult to accept the Commission’s proposals in Article 10, as they confuse competences in the field of human rights with discrimination on the grounds of sex. Equal treatment between men and women must apply to the entire population and not only to minorities facing discrimination on other grounds, such as race or religion. That is why the body entrusted with ensuring that the directive is applied correctly could be the same body that is competent for directives in the field of equal treatment between employed men and women, but not a body concerned with protecting human rights. Conclusions The 1986 directive did not achieve its objectives because it was too timid. The current Commission proposal still does not go far enough because it only proposes non-binding measures. Providing for opt-outs and exempting self-employed workers and especially assisting spouses from compulsory social security cover will not ensure equal treatment between men and women. We are aware that the Member States are far from unanimous about the need to improve the legal framework in order to ensure the sound application of the principle of equal treatment between men and women engaged in a self-employed activity and their assisting spouses or recognised life partners. Similarly, we note the widely divergent positions of both professional organisations and the NGOs working in this field. We nevertheless believe it should not be impossible to reach a reasonable consensus, so that this directive can be adopted at first reading, before the European elections.
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| OPINION of the Committee on Employment and Social Affairs (*) (12.2.2009) |
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SHORT JUSTIFICATION The proposal for a directive, that would replace the existing directive 86/613/EEC, was requested by the European Parliament "with a view to eliminating indirect discrimination, introducing a positive requirement of equal treatment and improving the legal status of assisting spouses. Consideration was given to the situation of spouses helping in handcrafts, trade, agriculture, fisheries and small family businesses from the gender equality perspective as well as taking into account the fact that women are in amore vulnerable position than men.(1) This opinion has the aim to underline this request. Additionally, it supports the proposal of the Commission to add ´life partners` as a group which should also be covered by the Directive. As the situation in the Member States is very complex concerning legislation on life partners, it seems necessary to make clear that from a European point of view all persons who participate in the activities of self-employed workers without being an employee or business partner should benefit from the same level of rights and protection. With respect to equality between women and men, the principle of equal treatment has to be applied not only to the establishment, equipment, or extension of a business but also to management, which includes the participation in decision making processes. With respect to equal treatment, also the effort of the Commission is welcomed to ensure better social protection for assisting spouses and life partners. However, benefits from social protection systems should only then be on a voluntary basis if the same principle is applied to self-employed workers. If a Member State obliges self-employed workers to join a social security system, it should also be obligatory for assisting spouses and life partners. Finally, it is suggested that Member States should be able to comply with the aims of the directive much earlier than the Commission envisages as there is already a directive in place that will only be extended in some respect. AMENDMENTS The Committee on Employment and Social Affairs calls on the Committee on Women's Rights and Gender Equality, as the committee responsible, to incorporate the following amendments in its report:
PROCEDURE
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| OPINION of the Committee on Legal Affairs (30.3.2009) |
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SHORT JUSTIFICATION The rapporteur supports the Commission proposal for a directive on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Directive 86/613/EEC. The role of assisting spouse is often unfairly perceived as a normal, unpaid task. The purpose of Council Directive 86/613/EEC of 11 December 1986 is to apply the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and to protect self-employed women during pregnancy and motherhood. Directive 86/613/EEC has not attained its goal, which was to give assisting spouses, who really are invisible workers, a clearly defined professional status and to establish their minimum rights and safeguards. Directive 86/613/EEC covers two different categories of people: 1. 'self-employed workers', i.e. all persons pursuing a gainful activity for their own account, under the conditions laid down by national law, including farmers and members of the liberal professions; 2. their spouses who are not employees or business partners, who 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. In December 2007 the Council asked the Commission to 'consider the need to revise, if necessary, Council Directive 86/613/EEC in order to ensure the rights related to motherhood and fatherhood of self-employed workers and their helping spouses'. In March 2008 the European Parliament called on the Commission to re-examine the Directive so as to improve the situation of assisting spouses in agriculture. The Commission therefore asked independent legal experts to draft an impact assessment report to check whether the modifications to the Directive might improve the application of the principle of equal treatment between women and men and increase the participation of women in self-employed activities. The report came to the conclusion that non-binding measures should be maintained. It also concluded that the option that best met the objectives was a proposal for a directive amending Directive 86/613/EEC. This should include the following: · providing for a possibility of a period of maternity leave for self-employed women of a maximum of 14 weeks, including 2 mandatory weeks, · the right of assisting spouses to be covered by the same social protection provisions as those of their self-employed partners, · giving national equality bodies competence in the area covered by the directive. The purpose of this proposal for a directive, the legal basis of which is Article 141 of the EC Treaty, is to repeal Directive 86/613/EEC; it concerns aspects not covered by Directives 2006/54/EC, 2004/113/EC and 79/7/EEC. AMENDMENTS The Committee on Legal Affairs calls on the Committee on Women's Rights and Gender Equality, as the committee responsible, to incorporate the following amendments into its report:
PROCEDURE
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| Last updated: 22 April 2009 | Legal notice |