4 May 1992

Doc. 6606

REPORT BY THE SECRETARY GENERAL ON EQUALITY

BETWEEN WOMEN AND MEN IN THE COUNCIL OF EUROPE

FOREWORD

      At their 433rd meeting (September 1990), the Ministers' Deputies said they hoped to be kept regularly informed about measures adopted and progress achieved towards equality between the sexes, in the Organisation's activities and also the running of the Secretariat. They called on the Secretary General to submit annual reports to them containing all appropriate information on this important issue. This document represents the first such report drafted by the Secretary General. The information contained therein refers as a rule to 1991 but whenever possible or appropriate, events which have occurred in previous years are also mentioned. The Secretary General expressed her remarks and considerations on the progress in the situation concerning equality between women and men in the Introduction hereafter.

      In accordance with the Ministers' Deputies' decision, this Report is transmitted to the Parliamentary Assembly for information, to the Steering Committee for Equality between Women and Men as well as to interested parties, including international governmental and non-governmental Organisations active in the field of equality between women and men.

TABLE OF CONTENTS       Page

      Introduction by the Secretary General       3

Part I - Activities of the Organisation

A.       Intergovernmental Programme of Activities       8

B.       Activities of the Parliamentary Assembly        22

C.       European Commission of Human Rights       23

D.       European Court of Human Rights       24

E.       European Social Charter       25

F.       European Committee for the Prevention of Torture and

      Inhuman or Degrading Treatment or Punishment       26

Part II - The Secretariat General

Introduction       28

A.       Specific action designed to improve the status of women       31

B.       General questions in the sphere of staff policy       35

Part III - Appendices

      Appendices 1 - 7 (Tables)       38 - 48

Appendix 8 (Case Law of the Committee of Independent Experts

      on the European Social Charter)       50

INTRODUCTION BY THE SECRETARY GENERAL

      In submitting this report for the first time, I am aware that it represents the culmination of an experiment dating back more than ten years, and at the same time the start of a new undertaking. Since the formation of the first ad hoc committee on women issues (CAHFM) in 1979, the Council of Europe has never ceased to concern itself with the equality issue, gradually adjusting its approach to the point at which it has placed this question in the context of fundamental rights of the human being.

      The preparation of a document summarising and assessing the activities and measures adopted in the Organisation is also the starting point in a new stage, marked by a more politically motivated desire to translate principles, on whose universal validity everybody agrees, into facts - be they political decisions or administrative arrangements.

      From this viewpoint, I wish this report:

-       to bear witness to the attachment of the Council of Europe to the principle of equality, which matches its vocation as an Organisation acting as a custodian of human rights, resolutely committed to affirming and strengthening pluralist and participative democratic institutions;

-       to indicate its original approach whereby equality is a preoccupation, a constant and an objective which should traverse "horizontally" all the Council of Europe's activities;

-       to create a set of dynamics which can mobilise the energies and determinations needed in order to free situations which have become blocked or to accelerate excessively sluggish and hesitant trends.

      A number of recent decisions make it possible to situate this report in a context marked by the determination - shared by the Secretary General and the Committee of Ministers - to ascribe due importance to the equality problem:

-       first, the transfer of the equality sector from the field of social and economic questions to that of human rights: an administrative measure with a clear political significance, equality being more than a social problem - a genuine challenge to democracies which are slow or reluctant to recognise that women are entitled to enjoy full rights (and the effective exercise of those rights);

-       second, the transformation of the ad hoc Committee for Equality between Women and Men into a steering committee: a change in the structure indicating a change in a concept, equality no longer being a casual preoccupation or temporary concern, but an on-going commitment of our Organisation;

-       third, the appointment of an Equal Opportunities Adviser to help the Secretary General prepare and put into effect the administrative measures that are needed if the actual running of the Council of Europe - at the level of human resources in the first place, but also current management practices - is to be based more on the principle of equal opportunities for men and women, and abide by that principle in full.

      Two more decisions by the Committee of Ministers are also worth mentioning: first, the Committee wished that the Recommendation (81)6 on the participation of women and men in equal proportion to the work of the expert committees be mentioned in the convocation letters issued by the Secretary General; second, it decided that the present Report be drafted.

      This Report is to be seen as an instrument making it possible to take stock at regular intervals of what has been achieved and at the same time to provide a key that will permit this same reality, in terms of facts or developments, to be interpreted and assessed and deficiencies to be shown up whenever necessary thus provoking the necessary self-examination on the part of the different parties concerned.

      The time has come in fact for the Council of Europe to take up the equality challenge in full, as a test of the credibility of its stand, at a time when democracy is making giant strides over the continent of Europe, but when the gap between principles and reality is also liable to widen, and when the rights that have been acquired or positions that have been attained at immense cost - notably to women - are threatened. I trust public opinion, political and social forces and decision-makers at all levels - to whom this Report is addressed - for safeguarding women's fundamental rights and emancipation through greater awareness and readiness to act.

* * *

      The main points of the Council of Europe's action concerning equality over the last few years can be recapitulated as follows:

-       the vocation and role of the ad hoc Committee - now a Steering committee - for equality between women and men have been gradually reoriented. The committee's initial function was to create general awareness of the question among all the intergovernmental and administrative bodies of the Council of Europe, or as it were to open their eyes to it, but its approach is now targeted to political questions: equal participation by women and men in the institutional processes and machinery, definition and realisation of a form of democracy genuinely based on parity, the effective mobilisation of public opinion, which has today reached a sufficient degree of maturity no longer to regard these questions as the exclusive preserve of a minority.

      This does not of course mean that the objectives of the effective realisation of the "equality" dimension in the Council of Europe's activities have been reached overall. As shown in this Report, many sectors of intergovernmental co-operation consider themselves neither concerned by nor interested in the equality issues and therefore do not take it into consideration in their work, notwithstanding the strong and unrelenting commitment of CDEG1 and its members. That is perhaps the reason why the steering committee concluded, after the phases of "stimulation" and "surveillance" of the action of other committees, that the time had come to set up a full-scale action programme that was resolutely political, making the equality issue necessary and "inescapable" in a different manner - a view that I share unconditionally;

-       in parallel with this development, there has been evidence in a limited number of steering committees of a more marked awareness of equality questions from the angle specific to each committee: for instance, problems of employment of, and access to employment for, women, with their implications in terms of initial and further training, approaches specific to the weaker elements of the population, such as men and women of migrant origin, social policy measures for children in the perspective of shared family responsibilities, have been tackled or are being tackled in the committees responsible for employment, migration or social affairs, respectively. These steps are welcome as they show a willingness to come to terms with concrete issues. Of course, this trend is perhaps not the exclusive consequence of what the Equality Committee has been doing, but it is safe to say that had it not been unrelenting in its efforts, the problems of equality between women and men at work and in the home

for instance, would hardly have been granted the priority they have obtained in the framework of employment policy;

-       last, intergovernmental structures and the Secretariat itself have begun to open up more and are witnessing greater participation by women, both in expert committees and Secretariat posts2. This positive development is definitely too timid: many committees still include too few women appointed by governments - or too few men, as far as the CDEG is concerned - and while more women are recruited by the Council of Europe they only slowly make their road through the Secretariat, none having yet been appointed to a direction post (A6 or A7). On the other hand, it is sad to acknowledge that the number of women in the Parliamentary Assembly - be they Representatives or Alternates - is very limited and shows no significant progress.

      Without wishing to draw any definite conclusion from these generally favorable signs, it is nevertheless possible to say that the direct involvement of the main decision-making bodies (the Committee of Ministers, the Parliamentary Assembly and the Secretary General), the attention being paid to concrete problems, the choice of rigour in committee work, are so many pledges of the success of an approach which is still long and arduous. Equality is a legal status that can only turn into reality through both progress and failures: the shortcomings disclosed by this Report will have to act as so many reasons for subsequent mobilisation, so that the Council of Europe shall not dash the hopes placed in it today by countless women and men.

PART I

ACTIVITIES OF THE ORGANISATION

A.       INTERGOVERNMENTAL PROGRAMME OF ACTIVITIES

      In 1991 the Intergovernmental Programme of Activities was reshaped and its contents adjusted in the light of the political priorities and objectives laid down by the Committee of Ministers in the Political Declaration and Resolution (89)40, adopted on 5 May 1989. The principal activities undertaken in each field of activities are presented in the form of projects, while ongoing actions appear as service activities.

Field I - Democracy, freedoms and the fundamental rights of human beings

      Following a decision by the Committee of Ministers, a Project Group "Human Rights and Genuine Democracy" (CAHDD)3, its membership enlarged to include representatives of different steering committees, has been set up, its terms of reference being the establishment of a research and priority action plan around the problem of human rights in connection with democracy, on the basis of contributions from the different steering committees concerned (Project I.4).

      The Steering Committee for Equality between Women and Men (CDEG), which has appointed two members to the CAHDD, has already prepared its contribution which is mainly concerned with the concept of "parity democracy" and its application in the legal/constitutional field, the fields of education and culture, economic life, the employment market and political and public affairs.

      The CAHDD will be reporting to the Committee of Ministers in the summer of 1992.

      Project I.2 covers the development of rights already included in international instruments and the definition at international level - as fundamental rights of human beings - of rights frequently recognised by national legal systems. One of these is the prohibition of any discrimination between women and men based on sex.

      Proposals had been put forward in the past by the Parliamentary Assembly, committees of experts and the Secretary General for the strengthening of the clause concerning non-discrimination in the European Convention on Human Rights, by means of an amendment to Article 14, so that it should have an "independent existence" in the Convention. It was suggested that Article 14 could be altered either by amending its wording so as to state the reasons why no distinction in the enjoyment of rights and liberties recognised in the Convention is warranted, or by extending its "ratione materiae" field of application, which would make it a general provision on non-discrimination.

      Another possibility suggested would be the inclusion in a Protocol to the European Convention on Human Rights of a provision guaranteeing equality before the law and equal protection by the law, based on similar provisions in the International Covenant on Civil and Political Rights and the Inter-American Convention on Human Rights.

      To date, these efforts have produced no palpable results.

      The Steering Committee for Equality between Women and Men had formally suggested that a Protocol to the European Convention on Human Rights concerning equality between women and men should be prepared.

      The Steering Committee for Human Rights (CDDH) agreed at its 30th meeting, held in May 1991, to defer taking a decision on whether the preparation of a Protocol on this question should be entrusted to the Committee of Experts for the Development of Human Rights (DH-DEV) to a later meeting.

      Still in the framework of Field I, the Steering committee for equality between women and men (CDEG) should be mentioned, whose task under its terms of reference is to "promote European co-operation between member States with a view to achieving real equality between women and men ..... and to stimulate actions at both national and Council of Europe level....".

      In accordance with the new dynamics resulting from the political guidelines laid down on 5 May 1989, the activities carried out by the former CEEG in 1991 have been included in Project I.4, "Equality between women and men."

      First, it is with an eye to improving the application of the principle of equality between women and men in real terms that the CDEG has continued its examination of the relation between this principle and democracy, and has given a practical content to the concept of "parity democracy", an emanation of its work, by defining the action and research to be carried out by the Council of Europe so that "genuine democracy" incorporates this new component.

      The elimination of obstacles to equality and the protection of the dignity of the human being were the objectives of a Seminar on actions against traffic in women and forced prostitution as violations of human rights and human dignity. The Seminar brought together for the first time an extensive range of persons concerned by the problem (including representatives of prostitutes' organisations) and staked out the phases for an action strategy that could be finalised in the Organisation.

      The choice of "Strategies for the elimination of violence against women in society: the media and other means" as the theme for the third European Ministerial Conference on equality between women and men to be held in 1993 is also in keeping with this approach, bearing in mind the significance of this type of violence, reflected in the imbalance in power relationships between women and men.

      Lastly, on the subject of education and creating awareness of the problems of equality, the CDEG is examining the possibility of establishing a European Observatory for equality between women and men in the Council of Europe, viewed as an instrument for disseminating information on the matter, and of launching a European public campaign on equality between the sexes as a "regional" contribution to the World Conference on Women in 1995.

      The importance of using non-sexist language was again emphasised by the CDEG, which regretted the fact that the attitude of the Committee of Ministers on this matter, expressed in Recommendation No. R(90)4, is not reflected as a matter of cause in texts prepared by the Secretariat.

      Deeming the time ripe for discussing urgent questions connected with equality between women and men in a changing Europe, the CDEG has also organised a Conference which will be attended by specialists from all the CSCE countries (Poznan, 31 March to 2 April 1992), to discuss the question of strategies for equality between women and men, a prerequisite for democracy. The Conference will be of especial significance for equality because, taking place in a pan-European context, it will make it possible to incorporate in the Council of Europe's work the concerns and priorities of the countries of Central and Eastern Europe, facing fresh challenges concerning equality.

      Some activities being carried out in other fields, referred to in this report, are the result of intervention by the CEEG: for instance, consideration by the European

Ombudsmen of the question of equality, at their third Round Table held in Florence on 7 and 8 November 1991.

      These Round Tables give the European Ombudsmen, judges of the European Court of Human Rights and members of the European Commission of Human Rights and the Steering Committee for Human Rights the opportunity to discuss questions of joint interest arising out of the co-existence of national and European judicial and quasi-judicial means of protecting and promoting human rights.

      At the third Round Table consideration was given to the question of equality between women and men. Ombudsmen, Mediators, Parliamentary Commissioners and other persons having similar functions in Europe reported on their practices in this area, and suggestions were put forward for improving the application of the principle of equal opportunities for women and men.

Field II - Media and communication

      The development of mass communications policies designed to promote equality between women and men - at least in a binding form - is limited by respect of the fundamental principle underlying relations between media enterprises and the authorities: the freedom of expression enjoyed by the former and the obligation on the latter to respect the independence of those engaged in the exercise of this freedom, in the context of both the printed media and the audiovisual media. Pending a development in the concept of equality between women and men towards the stage when it will be possible for the authorities to criticise sexism and the depicting of women in an unfavourable or stereotyped light in the different organs of the media, the mass media policy has been restricted for the moment to making media professionals aware of the need to adopt socially aware attitudes in this field and help dispel prejudices.

      In conformity with the work programme of the Steering committee on the mass media (CDMM) during the third Medium-Term Plan, the question of equality was not addressed in the CDMM's intergovernmental activities in 1991. Throughout the third Medium-Term Plan, the CDDM was active over a wide spectrum of cases, many of which were determined on the basis of the findings of the first and second European Ministerial Conferences on Mass Media Policy. None of these conclusions addressed the question of equality between women and men or that of the image of women in the media. 1991 was in fact largely devoted to preparation of the third European Ministerial Conference on Mass Media Policy (Cyprus, 9-10 October 1991). Here too, the question of equality did not appear on the agenda for the Ministerial Conference. The follow-up action to the previous Ministerial Conferences, continued in 1991, and preparation of the Cyprus Conference, meant that the CDMM devoted its energy to questions concerning new technological, political and economic developments affecting the media landscape. The preparation of policies by the CDMM was directed towards creation of an appropriate regulatory environment for addressing these new developments. The question of equality was not considered by the CDMM as part of the central core of policy relating to the media in this context.

      Nevertheless, Article 7 of the European Convention on Transfrontier Television includes among the responsibilities of broadcasters that of ensuring that their programme services shall respect the dignity of the human being. It should be noted that the Explanatory Report refers specifically to the principle of equality between women and men in commenting on the concept of human dignity.

Field III - Social and economic affairs

      Equality between women and men rapidly emerged as one of the fundamental principles in the social security field, particularly when the European Code of Social

Security (revised) was being prepared. As long ago as 1973, the Committee of Experts on Social Security - nowadays, the Steering committee for social security - unanimously recognised that some of the provisions in the European Code of Social Security (then in force) and its Protocol had become at least partly incompatible with new legislative trends and with varying social security practices in certain countries, and that both of these instruments needed revising. This revision (which was to lead to the revised Code) essentially set out to improve the existing standards and to adjust certain basic social security concepts (contingencies covered, beneficiaries, etc.). Prepared in accordance with these aims, the European Code of Social security (revised) was opened for signing on 6 November 1990. So far, it has been signed by 12 states and ratified by 1.

      The (revised) Code no longer contains the discriminatory passages which featured in the previous version. Article 3 states that "Each party shall endeavour to take appropriate measures to ensure equal treatment for protected persons of both sexes in the application of those parts of the present (revised) Code whose obligations it has accepted." Equality between women and men has thus become one of the essential recurring principles throughout the (revised) Code, which now constitutes, in view of the high level of protection which it guarantees, the main reference instrument at European level for the years ahead and an essential factor in social cohesion.

      Much of the work carried out within the competence of the Steering Committee on Social Policy (CDPS) concerns women more than men, although this may not be explicitly stated in the activity concerned. Thus, in the context of the Colloquy held on 3-5 December 1991 in Strasbourg entitled "Towards greater social justice in Europe: the challenge of marginalisation and poverty", although statistically many more women than men are impoverished, this was not brought out as one of

the themes of the Colloquy but was referred to explicitly in the Colloquy's introductory remarks. Again, the theme of the working groups set up and studies carried out by the CDPS 1990-1991 was largely connected to elderly people, particularly dependent elderly people. Women form the very great majority of these populations, above all of dependent very elderly people. The CDPS's work is concentrated not so much on putting the accent on equality questions as such, as ensuring that questions concerning poverty and, from 1992 on, family policy issues (Project III.8), are kept well to the forefront of the social agenda, and these groups nearly all include - or affect - more women than men.

      All of the work done in 1991 on demographic questions and on employment and migration takes in the problems of sex equality in a comprehensive sense. In general, everything said applies, depending on the subject, to all individuals, all workers or all persons in difficulty. Only the report presented by the Group of Experts on Employment and Unemployment of Migrants particularly stresses the situation of immigrant girls and women. The experts who helped to prepare the report thought it important that "the special problems of migrant women should be explicitly taken into account when devising and applying measures for the advancement of women in general on the labour market."

      This recommendation, which the European committee on migration (CDMG) has endorsed, may be followed by practical proposals for a future programme.

      The Steering committee for employment and labour (CDEM), which is launching several activities to promote employment (Project III.7), has instructed experts to explore social policy measures which can be taken to ensure greater

equality of employment opportunity for female and male workers with family

responsibilities - measures which would, to a large extent, apply primarily to women - and has also agreed to commission research on the vocational integration of women.

Field IV - Education, culture, heritage and sport

      Although their programmes no longer contain activities specifically concerned with equality between women and men or with women as such (as was once the case in the matter of education and sport), both the Council for Cultural Co-operation (CDCC) and the Steering Committee for the Development of Sport (CDDS) cover equality in their work and in particular Projects IV.11 on Language training, IV.13 on Adult education and Activity IV.501 on Sports for all. On the other hand, Activity IV.101 on teacher bursaries schemes addresses a profession that consists very largely of women. Thus, the Eudised review reports regularly, for example, on developments concerning equality in the education field, and the Eudised data-base contains several headings on this subject (Activity IV.103).

      Where cinema is concerned, the Cultural Fund4 will be partly subsidising the training of a number of woman film directors from Georgia, the Ukraine and Romania. This scheme is connected with the Festival of Women's Films, of which the Secretary General was a sponsor.

Field V - Youth

      There have been no recent intergovernmental activities dealing with equality.

It is worth pointing out, however, that Project V.1 on international youth mobility applies without distinction to young people of both sexes and marks a significant contribution towards practical realisation of the principle of freedom of movement in Europe, which was once the prerogative of relatively privileged minorities.

      As for the European Youth Centre5, 1,600 people took part in its activities in 1991, 53.6% of them men and 46.4% women.

      There were two study sessions specifically concerned with male/female equality in 1991: one organised by the YCW (Young Christian Workers) on "Relations and Sexuality of Young Workers" (28 September - 4 October 1991), which was attended by 16 women and 7 men; and one organised by the CEMYC (Council of European Minority Youth Committees) under the title "Sexism, Racism - What's it got to do with me?" (1-8 December 1991), which attracted 20 participants, all of them women.

      In recent years, as the following graph shows, there has been a remarkable increase in participation by women in the Centre's activities.

THE CHANGING PATTERN OF MALE/FEMALE PARTICIPATION

IN EYC ACTIVITIES, 1981 - 1991

      As for the European Youth Foundation6, 6,19l or 48% of the 12,917 participants in activities subsidised by the EYF in 1991 were women.

      The activities concerned with equality were the following: CENYC: The Political Role of Women in National Youth Councils (Loten, Norway, 12-16 June 1991), with 23 participants, all of them women; YDC: Women and Development (Madrid, Spain, 19-24 June 1991), with 31 female and 12 male participants; EYCE: Women's Seminar: The Courage to Live in a Changing World (Paks, Hungary, 1-9 August 1991), with 26 participants, all of them women, and IYCS-IMCS: Secondary Summer Week: Men and Women, Living our Differences (Luxembourg, 13-14 August 1991), attended by 76 women and 74 men.

Field VI - Health

      In the health field, there have been no activities specifically concerned with women or the problems of equality. The projects at present under way cover subjects (health education, screening, the ethical aspects of health) which are equally relevant to both women and men. It is true, of course, that the professional category covered by the activity on the training of health staff consists very largely of women.

      In response to a proposal made some years ago, four fellowships were awarded under the Medical Research Programme in 1989 for research on the role of women both as beneficiaries and providers of health care, covering treatment, prevention and health education. The following main points emerged from this research:

      -       specifically female roles or services are hard to identify precisely;

      -       such services or structures (mutual aid groups, health education classes run by woman doctors, nurses or nutritionists) may, and do in fact, exist at local level and on a voluntary basis;

      -       apart from the treatment of certain specifically female pathologies (breast cancer, cancer of the uterus), very little attention seems to have been paid to the role of women in health education, in terms either of prevention or active intervention.

Field VII -       Management of space and the natural world

Field VIII -       Local democracy

      There is no activity specifically concerned with sex equality in either of these fields. It should nonetheless be noted that the question of increased participation by women in political life at local level could be raised in connection with Project VIII.1 - Strengthening local democracy, and particularly in connection with implementation of Project I.1 - Human rights and genuine democracy, the impetus coming from the CDEG, which has prepared a contribution on democracy and equal representation.

      As for the Standing Conference of Local and Regional Authorities of Europe (CLRAE)7, it is worth remembering that, at the second European Conference on Local and Regional Youth Policies, which was held in Llangollen (Wales, United Kingdom) on 26-28 September 1991, a working party considered ways of involving young women more fully in local and regional life. It found that, as a result of historical, cultural, educational and psycho-sociological factors inherent in the fabric of western

societies, the fact of being a woman was a common obstacle to such participation.

      The CLRAE's Working Party on "Equality" has helped to prepare the Council of Europe's Conference on "Equality between Women and Men in a changing Europe", which is to be held in Poznan (Poland) from 31 March to 2 April 1992. A member of the Working Party, Mrs. Janu (Czechoslovakia) will act as rapporteur at the Conference.

      This Working Party has recently been placed under the authority of the Committee on Culture, Education and the Media.

      In the framework of the implementation of its own working programme entitled "Forecasting and rational regional spatial planning", the European Conference of Ministers responsible for spatial planning (CEMAT) decided to hold in Sweden in 1993 a Seminar on the "role and responsibilities of women in spatial planning".

Field IX - Legal co-operation

      Among 1991 activities, it should be noted that the Committee of Ministers adopted Recommendation R (91) 11 concerning sexual exploitation, pornography and prostitution of, and trafficking in children and young adults, and authorised publication of the accompanying report. These texts, which were prepared by the European committee on crime problems (CDPC) with the CDEG's help, contain provisions which are intended to protect young people - both male and female - against sexual exploitation.

      The Committee of Ministers' Recommendation R (91) 9 on emergency measures in family matters also deserves a mention here, since it sets out to cover various kinds of family situation by providing for emergency measures in cases where the interests of children or other persons in need of special protection or

assistance are in danger. Obviously, these provisions can apply to spouses and be used to protect the interests or rights of the weaker partner against the other.

B.       ACTIVITIES OF THE PARLIAMENTARY ASSEMBLY

      In 1991, the Assembly adopted Recommendation 1146 (1991) on equal opportunities and equal treatment for women and men on the labour market, in which it calls on the governments of member states to take a whole series of measures to promote equality between the sexes, ranging from working hours and equal pay to the appointment of women to positions of responsibility and the introduction of special temporary measures to accelerate de facto equality.

      Finally, the Assembly recommends that the Committee of Ministers apply its proposals to the Intergovernmental Programme of Activities and to the functioning of the Secretariat.

      A motion for a recommendation on equality between women and men was also referred to the Committee on Legal Affairs and Human Rights.

      The draft report prepared by Mr. Altug advocated:

-       embodying the principle of equality between women and men as a fundamental human right in a protocol to the European Convention on Human Rights;

-       enforcing equal representation;

-       laying down the principle of compulsory minimum percentage participation by women and men for a specified period.

      Since these proposals were rejected by the Committee, the rapporteur has chosen to prepare a new text.

      The Assembly has also decided to participate in the Conference on equality, which is to be held in Poznan (Poland) from 31 March to 2 April 1992, its representatives being the members of the Ad Hoc Sub-Committee of the Committee on Social, Health and Family Affairs as well as two representatives of the Committee on Legal Affairs and Human Rights.

C.       EUROPEAN COMMISSION OF HUMAN RIGHTS

      Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides as follows:

      "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

      The Convention does not prohibit discrimination per se, but only discrimination in the enjoyment of one of the substantive rights guaranteed in the Convention and its Protocols, and as a result there is only limited case-law relevant to equality between the sexes. Amongst the most recent cases, the following may be mentioned.

1.       Mmes ABDULAZIZ, CABALES and BALKANKALI v. the United Kingdom

(Applications Nos. 9214/80, 9473/81 and 9474/81)

      Dec. 11.5.82 DR 29 p. 176

      In the field of residence permits for foreign spouses, discrimination allegedly based inter alia on sex.

      Report 8.10.87

      The exclusion of the applicants' husbands from the United Kingdom entailed sexual discrimination in the securement of the applicants' right to respect for family life. Violation. (N.B. Following the judgment of the European Court of Human Rights in this case, the difference in treatment between the sexes was abolished with effect from 26 August 1985.)

2.       G. v. the United Kingdom (Application No. 14344/88)

      Dec. 14.12.89

      S.1(5) of the Immigration Act 1971 conferred on male Commonwealth citizens settled in the United Kingdom prior to 1 January 1973 a right to be joined by their wives. Female citizens did not have such a right, and the applicant's foreign husband was refused leave to remain in the United Kingdom with her. However, the relevant legislation was subsequently repealed, and the applicant's husband was allowed to remain. Struck off.

D.       EUROPEAN COURT OF HUMAN RIGHTS

      None of the judgments given by the Court since 1988 has been concerned with discrimination between men and women. Indeed, this question has so far arisen only in two cases: Rasmussen v. Denmark, where the issue was differences in the treatment of spouses in contesting paternity, time-limits being imposed on the father and none on the mother, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, concerning regulations which made it easier for men than for women settled in the United Kingdom to be joined by their spouses.

      In its judgment of 28 November 1984, the Court ruled that the difference in treatment was not discriminatory within the meaning of Article 14 of the Convention and dismissed Mr. Rasmussen's application. In its judgment of 28 May 1985, the Court found that there had been discrimination against MM. Abdulaziz, Cabales and Balkandali.

      In 1991, a case was brought before the Court by the Commission concerning two Irish companies specialised in giving counsel and aid to pregnant women (including the possibility of obtaining abortion in Great Britain) as well as four women, appealing against the Irish government due to the judgment by the Irish Supreme Court restraining the companies from assisting pregnant women to travel abroad in order to obtain abortion. In its decision of 7 March 1991, the Commission found inter alia that such prohibition amounted to a breach of Article 10 of the Convention which guarantees freedom of expression, including the right to receive and impart information.

E.       EUROPEAN SOCIAL CHARTER

      The provisions of the Social Charter which are chiefly relevant here are Article l, para. 2 (no discrimination at work), Article 4, para. 3 (no discrimination between men and women in the matter of remuneration) and Article 8, para. 4 (regulating the employment of women on night work and prohibiting the employment of women on dangerous, unhealthy or arduous work). Appendix 8 to this report contains a detailed account of the positions adopted on these matters by the Committee of Independent Experts.

      It must be stressed that these are not the only provisions on equality in the Charter, whose principles, rights and obligations are applicable without distinction to "everyone" or "all workers" regardless of sex, except in the case of provisions specifically applying to one sex only - in this instance, women.

      In fact, the decisions given by the supervisory bodies reflect a tendency to move beyond "protection" of women towards treatment which is wholly "non-discriminatory", and the question of revising Article 8, para. 4 has arisen in this context. In this connection, it should be noted that the Ad Hoc Committee of Experts set up by the Committee of Ministers to revive the Social Charter (Charte/Rel), having prepared an amending protocol to the Charter open to signature on 22 October 1991 in Turin on the supervisory procedure, now proposes to review articles which appear to have been overtaken by changes in attitudes and in generally

accepted employment and social policy practices. Suggestions might therefore be made on rewording Article 8, para. 4 in terms which, without diminishing the protection needed for workers doing dangerous or unhealthy work, would eliminate those aspects which are thought to discriminate against women.

F.       EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

      When carrying out inspections, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is concerned to verify the treatment of women and men in prisons. In various places it has visited, the CPT has examined the conditions in which women are held in quarters reserved for them. It has also visited women's prisons.

      The following are among the CPT's main recommendations and comments:

-       it is important to give women and men who satisfy the necessary conditions equal access to activities organised in prisons;

-       in prisons which house both women and men, it is important to ensure that women can participate in shared activities in conditions which guarantee their

physical and psychological welfare. In this connection, the CPT has pointed out that the training provided for prison staff should make them aware of these questions;

-       it is necessary to improve existing health facilities and to provide increased possibilities of gynecological treatment otherwise than in connection with the treatment of venereal diseases.

      The CPT has also been led to consider the percentage of women among prison

staff. Specifically, it has expressed the view that the presence of female staff in male

prisons is a good thing and helps to improve the atmosphere.

      The reports on inspections carried out by the CPT in Austria, Denmark and the United Kingdom have been published.

PART II

THE SECRETARIAT GENERAL

      INTRODUCTION

      The international community long ago recognised the importance of women's role and the need for women to play their full part in political, economic and social affairs. The World Conference in Nairobi, which marked the end of the United Nations Decade for Women, also signalled the start of action to give effect to the ideals proclaimed during the Decade.

      International organisations, while advocating the changes required to improve the status of women, could not - and cannot now - avoid taking a critical look at the situation in their own secretariats. Failure to do so would entail complete loss of credibility.

      At the United Nations, for example, a co-ordinator for the improvement of the status of women in the Secretariat was instructed in 1985 to draw up a report which was presented to the Assembly by the Secretary General that same year. In Resolution 40/298B of 18 December 1985 the Assembly approved the action programme proposed in the report to overcome the obstacles to the recruitment and advancement of women. The programme included detailed work plans on careers structure, training, conditions of employment and settlement of disputes.

      In line with one of the key points of the action programme, a steering committee for the improvement of the status of women in the Secretariat was set up to monitor the action taken.

      The European Community institutions were asked by the European Parliament in its Resolution of 17 January 1984 to set an example of positive action to promote

equal opportunities for women by carrying out a comprehensive programme of practical measures in their own departments. It was recommended in particular that:

-       vacancy notices be more widely publicised and worded in a less biased manner;

-       new in-service training facilities be introduced with equal opportunities in mind;

-       steps be taken to make it easier for all officials to combine family life and work;

-       promotion plans for female staff be drawn up with a view to achieving balanced representation;

-       action be taken to arouse awareness of the sex equality issue;

-       equal opportunities committees be set up.

      In October 1985 a study drawn up by three outside experts on equal opportunities for the staff of the Commission of the European Communities concluded that women were subject to indirect discrimination. The experts recommended numerous measures including:

-       outline measures for the introduction of a positive action programme;

-       practical steps to remove bias from staff management practices and procedures;

-       temporary compensatory measures for women only to improve their representation in the various categories and in senior posts.

      At the Council of Europe, the Killilea Report on equality between women and men in the Secretariat of the Council of Europe, adopted by the Parliamentary Assembly on 19 June 1986, criticised the under-representation of women in categories A (especially in the senior grades) and C. The report proposed a substantial list of short-term measures. In particular, it advocated introducing a quota of career-starting posts reserved for women as well as positive action ensuring that preference was given to female candidates during promotion procedures, in cases of equal merit and seniority, until balanced representation of men and women was secured in the same

category. It also suggested that women be encouraged to take part in training courses, that the rules on working hours be eased, that B1 to B6 job descriptions be redefined, that steps be taken to help staff move from category B to category A and lastly that an equal opportunities officer be appointed.

      Two years later, the joint working party8 on equality of the sexes and the improvement of the situation of women within the Secretariat, set up as a result of the Killilea report, substantially endorsed its conclusions.

      It is apparent from the above that the issue of equal opportunities cannot be addressed in isolation: the introduction of specific measures for the achievement of sex equality needs to be considered in the context of staff policy as a whole. That is why the proposals for ad hoc measures in favour of women are accompanied by proposals for general measures regarded as equally essential to the implementation of a truly effective equal opportunities policy.

      In describing hereafter the progress made by the Council of Europe Administration in this area and the shortcomings still to be remedied, attention is paid first to measures specifically or primarily affecting the situation of women, then to more general issues tackling which would help to improve the status of women in the Secretariat.

A.       SPECIFIC MEASURES TO IMPROVE THE STATUS OF WOMEN IN THE        SECRETARIAT

      It must be acknowledged that neither the newly acquired awareness of indirect discrimination against women in the Secretariat nor the discussion initiated in 1986 immediately prompted the framing and implementation of an active policy of sex equality.

      Analysis of the data on recruitment and promotion shows a few significant improvements9, to which the Administration's policies since 1988 have substantially contributed. Clearly, however, the problem remains unresolved.

      As soon as I took office as Secretary General of the Council of Europe, I decided to tackle the problem and pursue an active policy to promote equal opportunities in the Secretariat.

      I accordingly asked Mrs Eliane Vogel-Polsky to assist me as equal opportunities officer and requested her in particular:

-       to draw up a positive action programme designed to promote sex equality in practical ways;

-       to identify appropriate remedial measures in the areas of recruitment, careers, promotion procedures and staff management.

      Even before appointing Mrs Vogel-Polsky, I had stated that I planned to adopt both direct positive measures, relating in particular to recruitment and promotion, and supporting measures intended, for example, to foster changes in attitudes and improve working conditions and training opportunities.

      Naturally, the pursuit of an equal opportunities policy does not affect the principles laid down in Article 12 of the Staff Regulations, particularly the obligation to ensure "the employment of staff of the highest ability, efficiency and integrity".

      As far as direct measures are concerned, the Secretariat's primary goal is to considerably reduce, or even eliminate, the current discrepancy between the percentages of women and men recruited to fill A and L category posts. This can be done only by encouraging job applications from women, which are comparatively few in number for these posts despite a marked increase over the past few years 10.

      The intention is not, at this stage, to restrict certain competitions to women, but to attract a significant number of good female candidates by all appropriate means. Consequently, the Administration not only ensures that the wording of vacancy notices is bias-free, but also inserts an explicit statement encouraging women to apply. In addition, at the end of the recruitment procedure, preference is given to women candidates in cases of equal merit.

      The Secretariat thus aims to recruit 60 to 65% of women to fill A/L posts over the coming years, and to achieve distinctly more satisfactory - if not fully balanced -representation by 2000 - 2005.

      Likewise, given the lack of women in category C jobs, special attention will be paid to the recruitment of female applicants to fill vacancies in this category.

      As regards promotion and recruitment, applications are encouraged from women and preference is given to women in cases where male and female applicants are of comparable merit.

      Positive action of this kind is warranted by the fact that the under- representation of women is even more marked in the senior A/L grade posts (for example, no A6/A7 posts are held by women). The idea is to start working towards a better balance, as advocated in 1988 by the joint working party on sex equality, which proposed recourse to positive action after establishing that, on average, women in all categories remained longer in the same grade than their male colleagues. The first application of the criterion of preference on grounds of sex has nevertheless prompted an administrative appeal (Rec. 167/1991). The Appeals Board, in its judgment of 28 February 1992 annulled the order by the Secretary General.

      Lastly, the possibility of organising more often internal competitions for staff wishing to move from category B to category A is envisaged. This is not a measure restricted to women. However, coupled with the criterion of preference on grounds of sex, it will undoubtedly benefit women staff members, who form the majority in grades B4 to B6.

      As regards supporting measures, the new rule on part-time work, adopted by the Committee of Ministers on 5 December 1990 and effective since 1 January 1991, provides the flexibility required to enable staff members who so wish to adjust their working hours.

      The regulations on the subject have thus been brought into line with those in force in most of the member states, since the new rule permits part-time work on the basis of 50%, 80% and 90% of the standard monthly hours for personal as well as medical or social reasons.

      Although applicable to all staff, the rule is a major step forward for women: 38 of the 41 officials currently working part-time are women.

      However, the introduction of more flexible working hours makes it easier for staff to combine work and family responsibilities, but this is only a partial solution which must be supplemented by setting up childcare facilities. Establishment Division has therefore started to re-examine the question of a crèche. It has contacted the Administration of the European Parliament and consideration is currently being given to the possibility of setting up initial common facilities.

      At the end of January Mrs Vogel-Polsky handed her first report on equal opportunities in the Council of Europe Secretariat. The report ends with a work programme for 1992 (see Appendix) which sets out proposals for dealing with urgent specific problems, including:

-       the production of a background document on the case for and legal basis of equal opportunities;

-       the replacement of staff members on maternity leave;

-       the pursuit of an equal opportunities policy in the operation of recruitment and transfers/promotions panels;

-       the setting up of an equal opportunities unit.

      The programme also includes general measures concerning changes in attitudes and the reorganisation of staff policy as a whole.

      This brings us back to the observation that an equal opportunities policy must necessarily be viewed as part of staff policy in general and that its effectiveness also depends on the steps taken or planned in that area.

B.       GENERAL STAFF-POLICY ISSUES

      At the moment four fields of action are being looked at: appointments, career structure, staff assessment and training.

      Several joint working parties (with Administration and staff representatives) have looked at the possibility of amending the regulations on appointments. The concern here is to reassess the whole system and make the changes necessary to secure administrative speed, appointment of the best person for the job and procedure which is not only fair but also seen to be fair.

      Because grade and duties are rigidly linked, career progress too often depends at present on a post happening to fall vacant and not enough on staff members' qualifications and performance, with the result that the Secretariat does not function as well as it might and deserving staff members are penalised.

      The first requirement is therefore to deal with two things - functional organisation of the Secretariat and management of the individual staff member and his or her career progress - as separate matters.

      Creating posts ad hoc has in fact distorted the grade pyramid, causing bottlenecks at certain levels more particularly in category B (at B4) and a shortage of established posts of certain kinds - especially managerial, supervisory or executive posts (B4-B6) - despite a significant effort in the 1992 budget to remedy the matter.

      Consideration is therefore being given to grouping some grades together (B2-B4, for instance) and making provision for planned career progress within the groups.

      Work on this - which began some years ago and was interrupted in 1988 - resumed in late 1990. Simulations have been conducted on the basis of various

working hypotheses, and in consultation with staff representatives the Administration is looking at a scheme for repyramiding some categories and introducing an essentially merit-based promotion system for all staff. This likewise entails redrawing the list of posts and reorganising the procedure for appointment and promotion.

      Setting up a system of merit assessment and appraisal of staff qualifications is an absolute prerequisite for fair career management and would also make the appointments procedure more transparent. Here there needs to be consultation between the Administration and the staff's representatives, and a consultant's study could provide a suitable basis for such consultation.

      Training policy must become a means of assisting staff mobility and career progress. Training activities could also be introduced which were consistent with the aim of achieving equality of opportunity.

      Reorganisation of career arrangements, revision of the appointments procedure, introduction of a merit assessment system and refocusing of training policy cannot but be of benefit to all staff. But all these things would also have a beneficial effect on the general context of the equal-opportunities action and would make that action much more effective.

      However, better management of human resources, including implementation of an equal-opportunities policy, necessarily costs money and will require appreciable reinforcement of Establishment Division, whose resources are inadequate to its ever heavier and more complex workload.

      This is borne out by Mrs Vogel-Polsky's proposals, which necessitate expenditure for which there was no provision in the 1992 budget as well as involving new consultation, supervisory and executive activities.

APPENDICES

1.       1992 WORK PROGRAMME - PROPOSED AIMS

      (Recommmendations by Mrs E. Vogel-Polski to the Secretary General)

A.       General action

A.1       Action to change attitudes

      Modernisation of the Organisation presents the ideal opportunity to remedy matters and to put across what equality of opportunity involves and win acceptance of its aims to achieve.

      -       Seminars on equal opportunities and affirmative action should be arranged as part of management training.

-       Special training should be provided for heads of departments so that they actively pursue an equal-opportunities policy and encourage their female staff to apply for vacancies and take training.

-       Special training should be provided for members of recruitment or promotion panels.

-       A general booklet on equal opportunities at the Council of Europe should be produced to make the Secretariat aware of the issues.

A.2       Reshaping of general staff policy

      Further to the work by the Directorate of Administration, an equal-opportunities policy should be introduced and actively pursued and an estimate

made of the cost of the various adjustment measures - affirmative regradings, transfers, promotions and creation of posts - which implementing such a policy would involve. I believe that appointing a person to see that equality of opportunity is built into the process which is under way is crucial to achieving such equality, and the person appointed will have to have regular consultation with the equal opportunities adviser.

      The final plan for equality of opportunity in the Secretariat will have to be an integral part of any new policies or statutory reforms introduced, which will have to take account of the aims and the new mobility-promoting measures which the plan incorporates. Examples: reform of Article 23 (2); twinning of grades; assessment arrangements; removal of barriers to movement between categories.

A.3       Training

i.       Training arrangements with a view to drawing up career-progress plans with staff members which take account of the Secretariat's future needs: the arrangements should actively pursue equality of opportunity and seek to redress the balance between the sexes at all levels within categories and in training programmes.

ii.       Similarly, training for staff with senior-management responsibilities (A4 - A7) should include training in equal-opportunities issues.

iii.       In assessments of training needs for 1993 there should be express provision for properly targeted training schemes to promote equality of opportunity in areas of responsibility where women are under represented or where there are no women at all.

      In the first half of 1992 there should be an organised enquiry into development of training policy in the Secretariat and into the active pursuit of an equal-opportunities policy.

B.       Urgent specific problems

B.1       The case for and the legal basis of equality of opportunity

      Production of a document taking stock of the latest thinking and practice in international law and in the law of the Council's member states, more particularly regarding the civil service.

B.2       Child-minding arrangements - crèche

      This question should be examined in the first half of 1992 so as to generate proposals for inclusion if necessary in the 1993 budget. Consideration should be given to facilities which would not have any effect on the budget such as: adjusting core time to fit in with school hours; avoiding holding meetings of steering committees or committees or experts during school holidays, etc.

B.3       Replacement during maternity leave

      Same comments as for 2. There should, for example, be a special item in the budget to cover replacement by full-time temporary staff of female staff members of any category absent on maternity leave.

B.4       Operation of recruitment and transfers/promotions panels

      Special consideration needs giving to ensuring that panels operate in a way consistent with equality opportunity. What happens to reserve lists. Official notification of results. Encouraging women to take part in competitions.

B.5       Equal-opportunities unit

      Given the extent of the suggested 1992 tasks, and with the aim of establishing

permanent equal-opportunities machinery in the Secretariat to take over from the

outside equal-opportunities officer (who was necessary to initiate the process of change and draw up a plan of equal-opportunities action), I suggest that, as an experiment, an equal-opportunities unit be created. Its staffing and mode of operation would be determined by the matters to be dealt with in 1992.

      I think it would be worth making use of the skills and experience of the people who were involved in the preparatory work on the suggested main issues and having extremely flexible methods of involvement, action and co-ordination.

2.        STAFF MEMBERS OF THE GENERAL SECRETARIAT

      BY CATEGORY AND GRADE

Situation 31 December 1991

	A7	A6	A5	A4	A3	A2	A1	L5	L4	L3	L2	L1
TOTAL/ CATEGORY	260							59
MEN	10	15	32	67	49	21	2	2	12	14	8
WOMEN			7	13	24	17	3		8	8	7
TOTAL GRADE	10	15	39	80	73	38	5	2	20	22	15

	B6	B5	B4	B3	B2	B1	C6	C5	C4	C3	C2	C1
TOTAL/ CATEGORY	429						136
MEN	5	17	19	8	8		5	17	27	37	38	2
WOMEN	3	41	53	143	124	8			2	5	3
TOTAL GRADE	8	58	72	151	132	8	5	17	29	42	41	2

3. RECRUITMENT

YEAR (by 31.12)	NUMBER OF RECRUITMENTS BY CATEGORY
	A			L			B			C
	TOTAL	M	W	TOTAL	M	W	T	M	W	T	M	W
1985	13	12 (92,31 %)	1 (7,69 %)	5	2 (40 %)	3 (60 %)	13	1 (7,69 %)	12 (92,31 %)	5	4 (80 %)	1 (20%)
1991	15	8 (53,33 %)	7 (46,67%)	3	2 (66,67 %)	1 (33,33 %)	19	6 (31,58 %)	13 (68,42 %)	2	2 (100 %)	--

4. SITUATION OF POSTS AT THE BEGINNING OF CAREER

YEAR (by 31.12) 1985	A1 - A3			B4			B1 - B2			C1			C4
	T	M	W	T	M	W	T	M	W	T	M	W	T	M	W
	107	81 (75,70 %)	26 (24,30 %)	68	20 (29,41 %)	48 (70,59 %)	134	6 (4,48 %)	128 (95,52 %)	5	4 (80 %)	1 (20 %)	29	29 (100 %)	- -
1991	116	72 (62,07 %)	44 (37,93 %)	72	19 (26,39 %)	53 (73,61 %)	140	8 (5,71 %)	132 (94,29 %)	2	2 (100 %)	--	29	27 (93,10%)	2 (6,90 %)

5. PROMOTION

	NUMBER OF PROMOTIONS BY CATEGORY
YEAR (by 31.12)	A			L			B			C
	TOTAL	M	W	TOTAL	M	W	TOTAL	M	W	TOTAL	M	W
1985 Number of promotions	31	20 (64,52%)	11 (35,48%)	3	3 (100%)	--	25	6 (24%)	19 (76%)	10	10 (100%)	--
1991 Number of promotions	21	15 (71,43%)	6 (28,57%)	2	1 (50%)	1 (50%)	37	4 (10,81%)	33 (89,19%)	3	2 (66,67%)	1 (33,33 %)

       6. TABLEAU SUR LA PARTICIPATION DES FEMMES DANS LES COMITES D'EXPERTS ET AUTRES ORGANES

PARTICIPATION OF WOMEN IN EXPERT COMMITTEES AND OTHER BODIES

Comité/Committee	1987 F/W Tot. %	1988 F/W Tot. %	1989 F/W Tot. %	1990 F/W Tot. %	1991 F/W Tot. %
I. CDDH	7 39 17,95	7 70 10	8 68 11,76	17 71 23,94	15 77 19,48
CDMM	8 56 14,28	7 38 18,42	8 37 21,62	8 46 17,4	12 59 20,33
CDSS	7 36 19,44	7 33 21,21	7 35 20	9 37 24	7 38 18,42
CDPS	8 28 28,57	8 23 34,70	7 22 31	10 27 37	13 36 36
CDEM	4 23 17,39	7 48 14,58	10 57 17,54	8 54 14,81	14 57 24,56
CDMG	8 36 22,22	13 64 20,31	16 60 26,66	15 65 23,07	16 72 22,22
CDPO	1 26 3,85	2 26 7,69	4 23 17,39	9 47 19,14	6 54 11,11
CDCC	27 81 33,33	61 212 28,77	50 170 29,41	55 183 30	52 181 28,73
CDDS	4 61 6,56	6 59 1	3 65 0,4	10 73 13,69	12 72 16,66
CC-PU	11 70 15,71	14 70 20	15 73 20,54	19 90 21,11	12 81 12
CC-PAT	---	---	---	17 64 26,56	50 157 31,84
CC-ED	---	---	---	---	52 150 34,66
CC-CULT	---	---	---	---	40 96 41,66
CDEJ	9 29 31,03	17 73 23,28	29 87 33	45 119 37,81	23 82 28
CDSP	9 43 20,93	7 30 25	9 30 28	6 32 25	13 36 30
CDPH → CC-PAT	4 32 12,5	6 31 19,35	8 29 27,58	---	---
CDPE	2 36 5,55	2 27 7,4	3 34 8,82	2 35 5,71	6 46 13
CDLR	2 25 8,00	9 60 15	12 76 15,79	16 74 21,62	15 75 20
CDCJ	12 55 21,82	13 57 22,81	13 56 23,21	13 57 22,8	13 51 25,49
CDPC	6 62 9,68	8 73 10,96	7 67 10,45	6 77 7,79	10 88 11,36
II. CEEG	26 29 89,65	50 57 87,7	51 59 86,4	47 57 82,4	53 57 92,9
CHARTE/REL	---	---	---	---	5 25 20
CAHAR	5 40 12,5	15 85 17,64	8 53 15	5 59 8,47	6 28 21,42
CAHCP	4 29 13,79	2 27 7,4	5 26 19,23	---	---
CAHBI	8 33 24,24	14 40 35	12 44 21,27	12 47 25,52	20 53 37,73
CAHST	---	3 21 14,3	7 28 25	7 27 25,8	8 25 32
CAHSC	---	---	---	---	14 57 25
III. CEDH	1 21 4,76	2 21 9,5	2 21 9,5	2 22 9,1	2 24 8,3
Comm EDH	2 21 9,52	2 21 9,5	2 21 9,5	2 22 9,1	2 22 9,1
T-SI	0 7 --	1 6 16	1 6 16	2 6 33	2 6 33
T-SG	5 14 35,71	5 15 33	5 16 31	5 17 29	3 17 18
CHARTE/REL	---	---	---	---	5 25 20
ComRec	0 6 ---	0 6 ---	0 6 ---	0 6 ---	0 6 --
ComBud	5 18 27,78	4 18 22,22	4 18 22,22	4 18 22,22	2 18 11,11
ComCompt	0 3 ---	0 3 ---	0 3 ---	0 3 ---	0 3 --
CPT	---	---	3 14 21	15 76 19	18 87 20
IV. CM (présence/attendance)	---	63 447 14,09	111 571 19,43	205 1075 19,06	223 1233 18,08
AP (membres/membership)	33 340 9,71	38 340 11,17	40 350 11,42	43 354 12,15	49 379 12,93

- 48 -

ANNEXE 7 - List of the main

steering and ad hoc committees and other bodies

of the Council of Europe

CDDH       -       Steering committee for human rights

CDMM       -       Steering committee on the mass media

CDSS        -       Steering committee for social security

CDPS        -       Steering committee on social policy

CDEM        -       Steering committee for employment and labour

CDMG        -       Steering committee on migration

CDPO        -       European population committee

CDCC        -       Council for cultural co-operation

CDDS        -       Committee for the development of sport

CC-PU        -       Standing conference on university problems

CC-PAT       -       Cultural heritage committee

CC-ED       -       Education committee

CC-CULT       -       Culture committee

CDEJ        -       European steering committee for intergovernmental

      co-operation in the youth field

CDSP        -       European health committee

CDPH        -       Steering committee for the integrated conservation of the historic heritage

CDPE        -       Steering committee for the conservation and management of the environment and natural habitats

CDLR        -       Steering committee on local and regional authorities

CDCJ        -       European committee on legal co-operation

CDPC        -       Steering committee on crime problems

CEEG        -       European committee for equality between women and men

Charte/Rel       -       Committee on the European social charter

CAHAR       -       Ad hoc committee of experts on the legal aspects of territorial asylum, refugees and stateless persons

CAHCP       -       Ad hoc committee on the movement of persons

CAHBI        -       Ad hoc committee of experts on progress in the biomedical services

CAHST       -       Ad hoc committee of experts to exchange views on standard-setting activities of the United Nations in the field of human rights

CAHSC       -       Ad hoc committee of experts to exchange views on standard-setting activities of the CSCE in the field of human rights

CEDH        -       European court of human rights

Comm CE       -       European commission of human rights

T-SI        -       Committee of independent experts of the European social charter

T-SG        -       Governmental committee of the European social charter

Com Rec       -       Appeals board

Com Bud       -       Budget committee

Com Comptes       -       Board of auditors

CPT        -       European committee for the prevention of torture and inhuman or degrading punishment or treatment

CM        -       Committee of Ministers

AP        -       Parliamentary Assembly

APPENDIX 8

CASE LAW OF THE COMMITTEE OF INDEPENDENT EXPERTS

ON THE EUROPEAN SOCIAL CHARTER

IN THE FIELD OF EQUALITY BETWEEN MEN AND WOMEN (1969-1991)

      The case law of the Committee of Independent Experts in the field of equality between men and women is mainly derived from Article 1, paragraph 2; Article 4, paragraph 3; and Article 8, paragraph 4.

      These are obviously not the only provisions relevant to equality: non-discrimination on grounds of sex underlies the whole philosophy of the European Social Charter, all but a few of whose provisions are applicable irrespective of sex. But the provisions discussed here are the ones which address issues of equality directly and unequivocally.

      Parts I and II of the Charter apply either to "everyone" or to "all workers". In this connection, the Committee of Independent Experts has ruled that "the term "worker" as used in the Charter [applies] equally to female workers except in cases where the context demands a different interpretation" (Conclusions IV, page 124).

* * *

NON-DISCRIMINATION AT WORK

ARTICLE 1, PARAGRAPH 2

Article 1 - The right to work

      "With a view to ensuring the effective exercise of the right to work, the Contracting Parties undertake: ...

2.       to protect effectively the right of the worker to earn his living in an occupation freely entered upon".

      From the outset, the Committee of Independent Experts has considered that, essentially, this provision encompasses two fundamental problems: the prohibition of forced labour and the eradication of all forms of discrimination in employment.

      - Conclusions I, page 15.

      Only the second of these problems will be discussed here.

      Non-discrimination at work must be defined with reference to the situations it covers (A) and its implementation (B).

      A.       Meaning of non-discrimination at work

      The question has to be seen from two angles: (a) what does non-discrimination include? and (b) what situations does the notion of "at work" cover here?

      a.       Non-discrimination

1.       Normally the principle applies universally, and there are non-exhaustive lists that show this to be the case: "certain requirements are not admissible under the Charter, such as those based on race, colour, sex, political opinion, religion, etc".

      - Conclusions VIII, pages 30 and 31

      - Conclusions X-1, page 36

2.       The field in which the battle against discrimination in employment has largely been fought is that of discrimination based on sex, of which most victims are women, married women especially. Discrimination in the word used to describe "the duty of a female civil servant to resign on marriage and the fact that married women cannot enter the civil service". The abolition of provisions of this kind is always approved by the Committee.

      - Conclusions I, page 166

3.       All the Contracting Parties are gradually abolishing this form of discrimination from their legislation and endeavouring to change attitudes.

      - Conclusions VII, general introduction, page XI

      - Conclusions VIII, pages 8, 29 and 31

      - Conclusions IX, page 12

      - Conclusions X-1, general introduction, pages 17-19

      - Conclusions X-1, page 35

4.       The Committee of Independent Experts does not merely make general statements about sexual equality at work. It is extremely vigilant and has, for instance, noted with satisfaction that certain forms of "indirect" discrimination, founded notably on marital or family status, have been abolished as well as all related "residual discrimination" on matters such as social security.

      - Conclusions VIII, page 31

      - Conclusions IX, pages 12 and 13

      - Conclusions X-1, page 24

      - Conclusions X-2, general introduction, page 18

      - Conclusions XII-1, page 45

5.       In other cases it has approved schemes "to encourage employers to recruit and train women for jobs which were previously usually filled by men, and vice versa", or "the introduction of certain forms of positive discrimination with a view to rectifying unsatisfactory employment situations".

      - Conclusions VIII, pages 32-33

      - Conclusions IX, page 13

      - Conclusions IX-2, general introduction, page 10

      - Conclusions X-1, general introduction, page 18

      - Conclusions X-2, page 42.

6.       But while the Committee's main efforts in the field of sexual equality at work were concerned with improving the situation of women, it has not overlooked cases in which discrimination operates against men, as for example over access to the profession of midwife. The Committee of Independent Experts ruled that one state was failing to comply with article 1, paragraph 2, of the Charter because "certain restrictions on the access of men to the profession of midwife" subsisted in its legislation. It welcomed the abolition of those restrictions in the following cycle.

      - Conclusions VIII, page 33

      - Conclusions IX, page 24

      b.       Employment

      The widest possible interpretation has always been maintained. Employment therefore concerns all workers, all types of employment, all sectors of activity and all aspects of employment.

1.       Non-discrimination as a factor in the freedom to choose an occupation applies to all workers, employers and employees alike, but "the Charter does not prevent an employer from stipulating whatever qualifications he may wish, provided that they do not take the form of requirements not admissible by the Charter (account being taken of article 31)".

      - Conclusions VIII, page 30

      - Conclusions XI-1, page 45

2.       Conversely, the "right of the worker to earn his living in an occupation freely entered upon certainly does not confer upon any worker, whether in the public

service or not, the right to employment of his choice regardless of his qualifications".

      - Conclusions VIII, page 29

3.       Because the principle of non-discrimination must apply to all jobs without exception, the Committee considered that a state was failing to comply with article 1, paragraph 2, of the Charter because that principle was not being applied "to employment for the purposes of a private household and to firms not employing more than 5 persons".

      - Conclusions IX, page 25

      - Conclusions X-1, page 38

4.       All sectors of activity are covered by the principle of non-discrimination: public, private, professional and self-employed.

      - Conclusions VII, general introduction, page XI

      - Conclusions VII, pages 7-8

      - Conclusions VIII, page 8

      - Conclusions IX, page 12

      - Conclusions IX-2, page 20

      B.       Implementation of non-discrimination at work

      The principle is implemented in law (a), obviously, but also in practice (b), for greater effectiveness.

      a.       Implementation in law

1.       By the 1970's, all Contracting States had enacted legislation "to promote equal treatment for men and women and abolish all forms of discrimination in society" and "the fight against discrimination in employment remained one of the principle aspects of [this] commitment".

      - Conclusions IX, page 12

      - Conclusions X-1, general introduction, page 17

2.       From the outset, the removal of all legal obstacles to equality was considered crucial.

      - Conclusions I, page 16

3.       The Committee has, nevertheless, stated that "whilst the Charter does not demand specific legislation to prevent discrimination on a given ground, where existing law and practice already exclude it, if such discrimination were to occur, it would be inadmissible".

      - Conclusions VII, page 9

4.       But even when legislation does provide for the elimination of one or more forms of discrimination in employment, all clauses to the contrary have to be repealed, otherwise the Committee of Independent Experts considers that the State in question is not complying with article 1, paragraph 2, of the Charter.

      - Conclusions VIII, pages 31 and 33

      - Conclusions IX, pages 24-25

      - Conclusions X-1, page 35

      b.       Implementation in practice

1.       The Committee of Independent Experts has always stated that "acceptance of this paragraph [places] the Contracting States under an obligation, inter alia, to provide appropriate education and training to ensure the full exercise of the right [to non-discrimination]", and that "positive, practical steps [must] be taken to create a situation which really [ensures] complete equality of treatment".

      - Conclusions I, pages 15-16

      - Conclusions IX, page 12

      - Conclusions X-1, general introduction, page 18

      - Conclusions XI-1, general introduction, page 20

      - Conclusions XI-1, page 45

2.       This concern with practical effects led on the one hand to the institution of equal opportunities monitoring bodies and, on the other, to various endeavours to change attitudes, through education and public awareness campaigns.

      - Conclusions VII, general introduction, page XII

      - Conclusions VII, page 7

      - Conclusions VIII, page 8 and 29

      - Conclusions IX, page 12

      - Conclusions IX-2, general introduction, page 10

      - Conclusions X-2, general introduction, page 17

      - Conclusions XI-2, page 50-51

      - Conclusions XII-1, page 41

3.       These methods appear to have had some success, because at the end of the "UN Decade for Women", "of all the areas covered by the Charter, this [equal treatment for men and women] is undoubtedly the one in which the change in the attitude of society as a whole was most evident". All governments are continuing their endeavours in this direction.

      - Conclusions X-1, general introduction, page 17

4.       Once all the Contracting Parties had adopted legislation on equal treatment (albeit with difficulty in certain cases), efforts were then concentrated on the effective application of the principle of equality; for "the de facto situation is (...) far from satisfactory". To the Committee it seemed that "the trend in realising equality

between women and men at work showed a certain degree of stagnation, perhaps because the issue was now more social and cultural than legal". The Committee accordingly feels that "other, probably more political, methods [will] have to be sought, and any activity along these lines [deserves] support".

      - Conclusions XI-2, pages 23 and 25

      - Conclusions XII-1, provisional edition, pages 16 and 17.

NON-DISCRIMINATION BETWEEN MEN AND WOMEN WORKERS

WITH RESPECT TO REMUNERATION: ARTICLE 4, PARAGRAPH 3

Article 4 - the right to a fair remuneration

      "With a view to ensuring the effective exercise of the right to a fair remuneration, the Contracting Parties undertake:

...

3.       to recognise the right of men and women workers to equal pay for work of equal value;

..."

      The exercise of these rights shall be achieved by freely concluded collective agreements, by statutory wage-fixing machinery, or by other means appropriate to national conditions.

* * *

      The independent experts have been concerned to interpret (A) this provision and clarify the arrangements for its implementation (B).

      INTERPRETATION

      The Committee of Independent Experts has adopted a two-tier approach, indicating the meaning (a) of Article 4, paragraph 3, and effecting a comparison with ILO Convention No. 100 (b).

      A.       Meaning of Article, 4 paragraph 3

      a.       Equality must exist in law and in fact

1.       From the start, during the first cycle of supervision, the Committee of Independent Experts made a point of emphasising that "this provision obliges the Contracting States who have accepted it to recognise the principle of equal pay for work of equal value, not only in law but also in fact".

      - Conclusions I, page 28

      - First report on certain provisions of the Charter which        have not been accepted, page 9.

2.       Consequently, it has been constantly concerned "to determine the reality behind the appearances" and has not been content to consider de jure situations only, because "legislation which at first sight may seem very satisfactory is sometimes inadequately or poorly applied". Furthermore, it considers that "the search for this kind of reality implicitly required by the terms of the Charter, as in Article 4 (...) which [provides] that certain undertakings may be implemented, otherwise than by law".

      - Conclusions III, general introduction, page XIII

      - Conclusions IV, general introduction, page XVI.

3.       It has constantly observed this twofold line of research - de jure and de facto - throughout successive cycles of supervision, stating that "two criteria should be applied to determine whether the right to equal pay for work of equal value is being respected: firstly, to see whether in law and in fact equal pay is guaranteed for equal work" ..., or noting that "progress had been clearly been made in eliminating discriminatory treatment, but the relevant information was based rather on legal texts than on statistical data", or again concluding that "the situation in law ... was now in conformity to the Charter on this point. However, being aware of this problem posed by the application of the (...) Act, the committee wished to find in the next (...) report information on the measures taken to ensure a satisfactory application of the Act ...".

      - Conclusions II, page 19

      - Conclusions III, page 26

      - Conclusions VIII, pages 68 and 69

      - Conclusions IX-2, page 40

      - Conclusions X-1, pages 60-61

- First report on certain provisions of the Charter which have not been accepted, page 10.

4.       It is this concern with reality, having regard both to situations and to the principle of equality, which has caused the Committee to consider in connection with certain national situations that "the aim stated in para. 3 of Article 4 [has not been] achieved [partly because] collective agreements [lay] down a minimum wage only, and not the real wage, and so [do] not permit effective comparisons between what men [are] paid and what women [are] paid for the same work".

      - Conclusions IV, page 35

      - Conclusions V, pages 32 and 33

5.       The same concern has prompted the Committee at times to ask for "fuller and more accurate statistics on what action has been taken by governments".

      - Conclusions II, page 1

      - Conclusions III, pages 27 and 29

      - Conclusions VI, general introduction, page XV.

6.       On the question of de jure recognition of the principle of equality, the Committee has stated that "the legislation of a State which has accepted this provision must prescribe [this]".

      - Conclusions VIII, page 66

      b.       Equal pay applies to equal work and to work of equal value

1.       This point appeared to require no clarification, as the wording of paragraph 3 of Article 4 was plain enough. The Committee nevertheless emphasised this double aspect in requesting further information on "the steps taken (...) to ensure equal pay for the same work" and "what has been done to ensure equal pay for work of equal value".

      - Conclusions III, page 27

2.       On another occasion it found that "although (...) equality of pay for equal work has become a reality in most Contracting Parties, the situation is far less satisfactory when it comes to the notion of the value of work done (...)".

      - Conclusions IV, page 34

      - Conclusions V, general introduction, page XVIII.

3.       The principle was re-stated clearly: "the legislation of the State which has accepted this provision must prescribe that men and women workers must receive equal pay not only for equal work but also for work of equal value". The Committee invariably expresses satisfaction when this is the case, and regret when a country's legislation on equal pay applies to "the same work" but not to "work of equal value".

      - Conclusions VI, page 24

      - Conclusions VIII, pages 66 to 68

      - Conclusions IX, page 42

      c.       The principle of equal pay must apply to all

1.       This idea was implicit in the Committee's statement of the principle at the end of the second cycle of supervision. Here again, no explanation seemed to be needed. The Committee nevertheless had to spell it out for the benefit of a State which "had no plans to take legislative measures to ensure equal pay for men and women doing the same work, for the sole reason that the number of agreements which failed to respect this principle seemed to be very low and going down even further". The Committee could not accept "the argument that only a very few working women were affected since, unlike other provisions of the Charter, paragraph 3 of Article 4 must be put into effect for the entire workforce of both sexes, as this provision is not among those for which Article 33 lays down that application to the great majority of workers concerned is sufficient".

      - Conclusions II, page 18

      - Conclusions IV, page 33

2.       Questions have been asked for similar reasons about the application of the principle to public service workers.

      - Conclusions VIII, pages 68 and 70

B.       Comparison between Article 4, paragraph 3 of the Charter and Article 2 of ILO Convention No. 100

1.       The Committee makes the point that "the Charter goes further than ILO Convention No. 100, as is evident from a comparison of the two international instruments, since the Charter included an explicit undertaking to recognise this right, whereas under the ILO Convention the States merely undertake to promote the application of the principle of equal pay for work of equal value".

      - Conclusions II, page 18

- First report on certain provisions of the Charter which have not been accepted, page 9

2.       The Committee discussed the distinction in greater depth in setting out the obligations implied by each text: ILO Convention No. 100 enshrines the commitment to apply the principle "in so far as this is consistent with the method of operation for determining rates of remuneration". Whereas "the obligation to ensure enjoyment of this right is, in the Charter, absolute".

      - Conclusions II, page 18

3.       From this last point, the Committee drew a conclusion of fundamental importance: it "wished to make it clear that if, in a country which has accepted this undertaking [Article 4, paragraph 3, of the Charter] the full exercise of the rights to equal remuneration cannot be ensured for all workers simply through the operation of collective agreements, the State is required to intervene by way of statutory wage-fixing machinery or any other appropriate method".

      - Conclusions II, page 18

      IMPLEMENTATION

      The Committee's main concern in the early stages was to determine what means were (a) necessary for the effective implementation of the principle; later its attention turned more to the guarantees (b) by which effective enjoyment of the right could be assured.

      A.       Means

      The Committee singled out four means, not all of equal importance.

      a.       State intervention

1.       In many countries, wage fixing was traditionally a matter for the collective bargaining machinery, but as early as the second cycle of supervision, the Committee set limits to this competence in regard to equal pay, saying that the State was required to intervene if the application of the principle of Article 4, paragraph 3, could not be ensured simply through the operation of collective agreements. It referred - though without special emphasis - to the final paragraph of Article 4.

      - Conclusions II, page 18

2.       The Committee has constantly recalled this requirement, explaining that Article 4, paragraph 3 "laid upon Contracting States an obligation to implement the principle of equal pay for work of equal value alternatively by three methods: collective agreements, legislation, or by other means appropriate to national conditions. This meant that if the first method is applied and does not give any results which are consistent with the Charter, owing to the attitude taken by employers' and workers' organisations, the State concerned must nevertheless intervene through legislation or any other methods likely to attain the aforementioned goal".

      - Conclusions V, page 31

      - Conclusions VII, general introduction, page XVI

3.       Examination of national reports on provisions of the Charter which have not been accepted confirmed the experts' view and prompted them to set it out in precise terms: "in [certain] states (...) questions connected with wages (...) are not normally dealt with by legislation. However (...), this approach does not in itself seem

sufficient to ensure the general implementation of the right enshrined in this article of the Charter. Thus legislative action is necessary, at least in order to determine the general rules which employers and employees should follow in their wage negotiations (eg abolition of differential scales, nullity of discriminatory contracts or clauses etc)".

- First report on certain provisions of the Charter which have not been accepted, page 10

4.       The overall result on this point seems encouraging: "it emerged from an examination of the report submitted that statutory provision for equal treatment between men and women has been made in all fields".

      - Conclusions IX-2, general introduction, page 10

5.       However the Committee was aware at a very early stage that there were limits to the effectiveness of legislative action: "while it is possible for a state to require by law, in default of collective agreements, compliance with the rule of equal pay [for equal work, implementation of the rule of equal pay] for work of equal value involves comparison and assessment of many complicated factors subject to variation in time and space".

      - Conclusions II, page 19

b.       Objective job evaluation

1.       The need for such evaluation was recognised from the outset: "equal pay for men and women workers is required for work of equal value, this presupposes the establishment by the governments of the States concerned of objective criteria for evaluating work, on the basis of appropriate methods (commissions, surveys, etc)".

      - Conclusions I, p. 28

2.       The complexity of comparison and assessment operations was observed, which led the Committee to suggest that the requirements of Article 4 para. 3 could be "regarded as being met if (...) the Contracting Party provided evidence that it had taken all steps within its power to achieve equality of remuneration for work of comparable value".

      - Conclusions II, p. 19

3.       This led the Committee to remind Contracting States of the need "to have full information on the objective criteria applied in each State to determine the equal worth of labour" and to ask the various States concerned, in each supervision cycle, a number of questions concerning "job evaluation", "job classification", "job evaluation methods", "objective criteria applied to giving meaning to the notion of equality in the value of labour", "the establishment of an occupational nomenclature"..., stressing that job-evaluation was "vital for the realisation of equal pay for work of equal value".

      - Conclusions II, p. 19 and 20

      - Conclusions III, p. 26-28

      - Conclusions IV, p. 34 and 35

      - Conclusions V, p. 32 and 33

      - Conclusions VI, p. 25 and 26

      - Conclusions VII, p. 26-28

      - Conclusions VIII, p. 68 and 69

      - Conclusions IX-2, p. 38 and 39

      - Conclusions X-2, p. 63 and 64

      - Conclusions XI-1, p. 77

      - Conclusions XII-1, p. 83

4.       While regretting that "evaluation is still in the embryonic stage, and is always restricted to certain sectors of the economy or even to a few firms in the industrial sector", the Committee "recognised that the effective implementation of the principle of `equal pay for work of equal value' could only be realised progressively, and that it encountered numerous difficulties in all countries".

      - Conclusions V, general introduction, p. XVIII

      - Conclusions V, p. 32

5.       However it did note the fact "some progress has been made towards establishing new objective criteria for job evaluation ..." and stressed "the need (...) for continued research into methods of assessing the comparative values of different jobs".

      - Conclusions VI, general introduction, p. XV

      - Conclusions VII, general introduction, p. XVI

      - Conclusions IX, general introduction, p. 13

6.       The first procedure on provisions of the Charter which have not been accepted, which dealt inter alia with Article 4, paragraph 3, provided an opportunity for the experts to reiterate the fact that the establishment "of objective criteria for assessing equivalence for jobs in all the economic sectors" was one possible approach for the effective protection of the right to equal pay but it also allowed them to stipulate the limits of the obligations upon States concerning this evaluation: in reply to remarks made by the government of a State, they said that "the Committee was unable to accept this suggestion (...) that acceptance of the principle would necessitate compulsory job evaluation throughout the economy: it felt that it would suffice if the right of a woman to equal pay were adequately guaranteed through the judicial system - for example by according her the right to claim job evaluation in her individual case".

- First report on certain provisions of the Charter which have not been accepted, p. 10 and 11.

c.       Raising of low salaries in sectors with a predominantly female labour force

1.       The Committee of Independent Experts noted that job evaluation was weakest in "the branches of the economy in which women workers hold most or all of the jobs" which has regularly led it to ask specific questions on these branches of the economy and ask for objective job evaluation "particularly in sectors with a predominantly female labour force".

      - Conclusions III, p. 27 and 28

      - Conclusions IV, p. 34

      - Conclusions V, general introduction p. XVIII

      - Conclusions V, p. 32 and 33

      - Conclusions IX-2 p. 39

      - Conclusions X-2, p. 63 and 64

2.       The Committee also observed that female workers "traditionally do lower paid jobs", although this is not direct discrimination since female labour is often less qualified.

      - Conclusions IX, general introduction, p. 13

      - Conclusions IX-2, general introduction, p. 11

      - Conclusions X-1, p. 64

3.       This is why the Committee said it is "aware that complete equality of remuneration between men and women cannot be achieved

with an upgrading of salaries and wages in the economic sectors

where female labour is prevalent".

- First report on certain provisions of the Charter which have not been accepted, p. 9.

4.       Consequently it regularly asks for information on progress made "in the upgrading of wages in sectors categorised by relatively low remuneration and traditionally employing large numbers of women"; or indeed it draws attention to "a progressive increase in the level of lower salaries (...) (with a beneficial effect, in general, for women workers) together with a reduction in the average difference between salaries for male and female workers".

      - Conclusions VI, p. 25

      - Conclusions VIII, pages 67 and 68

      - Conclusions IX, pages 43 and 44

      - Conclusions IX-2, p. 39

d.       Influence on attitudes

1.       Stressing that "efforts should be continued in order to achieve the effective implementation of the principle of equal remuneration", the Committee of Independent Experts added that it was also "often a matter of changing social attitudes. It noted in this context the national campaign carried out [in a particular State] with the objective of increasing the population's concern with the different aspects of this problem".

- First report on certain provisions of the Charter which have not been accepted, p. 10

      - Conclusions II, general introduction, p. XVI

2.       The reference to "awareness and information campaigns", or "measures... designed to change the attitudes of employers and society in general" now feature on the list of "efforts (...) made to ensure the genuine implementation of the principle of equality of remuneration between men and women".

      - Conclusions VIII, p. 69

      - Conclusions IX-2, general introduction, p. 10

      - Conclusions X-2, p. 64

      - Conclusions XI-1, p. 78

      - Conclusions XII-1, p. 86

      B.       Guarantees

1.       During the 8th supervision cycle, the Committee of Independent Experts explained more fully the scope of Article 4 paragraph 3. After reiterating that this supervision covered "not only... equal work but also... work of equal value", it attached three guarantees to the application of this principle:

- "any clauses of collective agreements or individual contracts which contravene this principle must be declared null and void by law;

- the protection of this right must be ensured through adequate remedies,

- workers must enjoy effective protection from measures of retaliation arising from their claim for equal pay (notably protection against dismissal)".

      - Conclusions VIII, p. 66

a.       Nullity of contravening clauses

1.       This is a point which the Independent Experts check systematically; either they note the existence of provisions to this end, or in the absence of information they ask a question on the subject. If no such provision exists the State concerned cannot satisfy the requirements of Article 4, paragraph 3.

      - Conclusions VI, p. 25

      - Conclusions VIII, p. 67-71

      - Conclusions IX, p. 42 and 44

      - Conclusions IX-2, p. 39

      - Conclusions X-1, p. 42-45

      - Conclusions X-2, p. 63

      - Conclusions XI-1, general introduction, p. 22

      - Conclusions XI-1, p. 77

      - Conclusions XI-2, general introduction, p. 24

      - Conclusions XI-2, p. 71

b.       Adequate remedies

1.       Adequate remedies were accepted relatively quickly by the domestic legislation of Council of Europe member States, particularly those which are also European Community members, and the Committee observed, in the first procedure on provisions of the Charter which have not been accepted, "a trend towards the granting of judicial guarantees, based on the recognition of an individual right in this matter. Stimulated by certain international standards or directives (...) some states have entitled women workers to take legal action (usually in a labour court) to secure effective protection of this right".

      - Conclusions V, p. 32

      - Conclusions VI, p. 25

      - Conclusions VII, general introduction, p. 16

      - Conclusions VII, p. 28

- First report on certain provisions of the Charter which have not been accepted, p. 10

      - Conclusions XII-1, p. 87

2.       The question of the existence of remedies is also systematically examined by the Committee which noted the existence of "appropriate legislation in the States examined, providing (...) the right of appeal to a judicial authority". It also noted that "all the countries have commissions responsible for enforcing the principle of equal treatment for men and women. The existence of such bodies does not, however, rule out appeal to the courts as by the means of safeguarding the right to equal treatment in particular the right to equal pay, which is guaranteed in all the States which have accepted the relevant provisions of the Charter".

      - Conclusions VIII, p. 67-71

      - Conclusions IX, general introduction, p. 13

      - Conclusions IX-2, general introduction, p. 11

      - Conclusions IX-2, p. 39

      - Conclusions X-1, p. 44 and 45

c.       Effective protection against retaliation measures

1.       As soon as the question arose, the Committee stated that "if a worker is threatened with the possibility of losing his job as a consequence of his exercising a fundamental right, such as the right to equal pay this could well result in the worker refraining from submitting his/her claim so rendering this right devoid of the greatest part of its significance". It considered that when "a worker is not sufficiently protected against dismissal resulting from the claim to benefit from equality of remuneration (...), any such deficiency in the legislation was not in conformity with Article 4, paragraph 3 of the Charter".

      - Conclusions VII, general introduction, p. XVI

      - Conclusions VII, p. 27

      - Conclusions X-2, p. 63

      - Conclusions XI-1, p. 75

      - Conclusions XI-2, general introduction, p. 24

      - Conclusions XI-2, p. 71

      - Conclusions XII-1, general introduction, p. 17

      - Conclusions XII-1, p. 83

2.       This question is also systematically checked. When dismissal on such grounds is possible, even accompanied by compensation for damages, the Committee considers that the state concerned does not satisfy the requirements of Article 4, paragraph 3 when the amount of compensation is neither "a sufficient deterrent for the employer or adequate compensation for the employer concerned". Only the compulsory reinstatement of the employee appears to be satisfactory unless the employee concerned refuses.

      - Conclusions VIII, p. 67 to 71

      - Conclusions IX, general introduction, p. 13

      - Conclusions IX, p. 42 to 44

      - Conclusions IX-2, p. 39 and 40

      - Conclusions X-1, general introduction, p. 8

      - Conclusions X-1, p. 42 to 45

      - Conclusions XI-1, general introduction, p. 22

      - Conclusions XI-1, p. 73

      - Conclusions XII-1, general introduction, p. 17

      - Conclusions XII-1, p. 82 and 86

3.       However, in one case the Committee accepted that "considering the whole of the ... provisions and the level of the damages awarded [under the legislation]," the State concerned complied with the provisions of Article 4, paragraph 3 of the Charter. It should be pointed out that the legislation of this State prohibits dismissal of an employee as a retaliatory measure, provides for a legal remedy should it occur and provides for the reinstatement of the worker in his employment in the public sector. It is only in the private sector that reinstatement did not appear to be possible if the employer refused and only in this situation may dismissal be maintained albeit accompanied by high compensation.

      - Conclusion IX, p. 43 to 44

4.       The Committee does not omit to concern itself with reprisals other than dismissal and has also considered the matter of burden of proof. It noted that in one State "whilst an employer was not entitled to impose a sanction on a worker for the sole reason that he/she had taken court proceedings, he was nevertheless not required to give reasons for dismissal. The dismissed worker thus faced serious difficulties in proving that his/her dismissal was caused by his/her having taken a legal action". The Committee therefore considered that this situation was "not entirely satisfactory".

      - Conclusions VIII, p. 69

      - Conclusions IX, p. 43

      - Conclusions IX-2, p. 39

      - Conclusions X-1, p. 43-45

      - Conclusions XI-2, p. 72

      - Conclusions XII-1, p. 85

REGULATIONS GOVERNING NIGHT WORK AND THE PROHIBITION OF

THE EMPLOYMENT OF WOMEN WORKERS IN DANGEROUS,

UNHEALTHY OR ARDUOUS WORK

ARTICLE 8, Paragraph 4

Article 8 - The right of employed women to protection

      With a view to ensuring the effective exercise of the right of employed women to protection, the Contracting Parties undertake:

      ...

4a)       to regulate the employment of women workers on night work in industrial employment;

b)       to prohibit the employment of women workers in underground mining, and, as appropriate, on all other work which is unsuitable for them by reason of its dangerous, unhealthy, or arduous nature.

* * *

      Regulations under paragraph (a)

1.       The Committee wished "to stress that the Charter does not prohibit night work by women, but lays down that it should be regulated". It noted developments in this area "which, though formally prohibited for women, forms now part of the claims put forward by them, since the prohibition of this type of work may be prejudicial to women, at a time when search for a job is becoming increasingly difficult". It seemed clear to the Committee "that a total ban would today be incompatible with an egalitarian conception of the rights of men and women with regard to employment. The obligation (...) not to prohibit but to regulate night work by women in industrial employment thus makes it possible to adopt, in this area, a more flexible attitude".

      - Conclusions VII, general introduction, p. XVI

      - Conclusions IX, general introduction, p. 14

      - Conclusions X-1, general introduction, p. 9

2.       Having noted "a trend towards regulating night work for both men and women", the Committee was prompted to ask "whether if such regulation applies to men equally with women workers, the requirements of this provision are met". It considered that "the regulations should be such as to afford women workers protection against the harmful physical (and sociological) effects of night work, [given that] if this protection is afforded to women by measures of general application, it is not necessary to take further measures to afford them additional `special' protection over the above that given to men".

      - Conclusions IX, general introduction, page 14

      - Conclusions X-1, general introduction, page 9

      - Conclusions X-1, p. 73

- Second report on certain provisions of the Charter which have not been accepted, p. 15

3.       Thus, true to its position in principle, the Committee accepted, in the interests of non-discrimination on the grounds of sex, flexible regulations governing night work by women in industry; such regulation is necessary and must be effective "in order to prevent abuse, given the adverse effects of night work on health and family life". This issue will need to be reviewed insofar as several countries bound by the Charter and having accepted this provision, are at present calling into question the banning and even the regulating of night work by women in industry.

      - Conclusions VIII, pages 131 and 132

      - Conclusions IX, general introduction page 14

      - Conclusions IX-1, Addendum page 23

      - Conclusions X-1, general introduction, page 20

      - Conclusions X-1, page 73

- Second report on certain provisions of the Charter which have not been accepted, page 18

4.       The Committee summed up these various points thus setting

out the scope of this provision.

      - Conclusions X-2, page 92

      Regulations under sub-paragraph b

a.       Underground mining

1.       The Committee took the view "that this provision of the Charter prohibited employment of women in underground mining (...) and not any work carried out underground in a mine, unless, of course, such work was `unsuitable by reason of its dangerous, unhealthy or arduous nature' as provided for in paragraph 4 (b) of Article 8". The application of this interpretation to the legislative changes that had prompted it led the Committee to reach a favourable conclusion since these changes did "not really allow employment of women in `underground mining' or any other work `unsuitable by reason of its being dangerous, unhealthy or arduous'".

      - Conclusions VI, page 71

2.       For mining work in the strict sense, the Committee will accept no derogations to the ban and considered that one State's legislation was "not in line with the Charter as it did not prohibit the employment of women in underground mining". Nor does it accept the total absence of protection, which already poses, and will increasingly pose, the problem of reconciling the need for non-discrimination on grounds of sex with the need for the specific protection of women workers, particularly since as far as this type of work is concerned, the Charter imposes a ban and not, as for night work, regulations.

      - Second report on certain provisions of the Charter which        have not been accepted, pages 18 and 20

      - Conclusions XI-2, page 103

      The Committee explicitly limited this ban to underground extraction work in mines.

      - Conclusions X-2, page 97

      b.       Dangerous, unhealthy or arduous work

1.       The Committee has never indicated what is to be understood under this heading. It remarks generally that a State prohibits or does not prohibit the employment of women in a relatively high number of occupations of a dangerous or unhealthy nature or in work regarded as particularly dangerous, unhealthy or arduous and draws a conclusion, on this specific point, of compliance or non-compliance with the Charter, sometimes accompanied by a reservation: "... if it was admitted that apart from the activities covered by [the Act] ... there were no kinds of work... that were regarded as dangerous, unhealthy or arduous for women, ... [this state] was fulfilling the undertaking deriving from paragraph 4 of Article 8 of the Charter".

      - Conclusions I, page 52

      - Conclusions VI, page 71

      - Conclusions VIII, pages 131 and 132

      - Conclusions X-1, page 72

2.       The Committee reaffirmed unequivocally "that protecting women workers in appropriate cases (...) against strenuous or dangerous working conditions was still a socially valuable aim to pursue" and that in these "appropriate cases" special protection should be afforded to women since, as with night work, "where a country's legislation provides in effect that any occupation which is suitable for a man is, a priori, also suitable for a woman (whether it is carried out during day time or at night), it would not consider this to be in compliance with the Charter". On this point also conflict between non-discrimination on the grounds of sex and protection of women workers is becoming increasingly pointed.

- Second report on certain provisions of the Charter which have not been accepted, pages 16 and 17

      The Committee has tried to avoid this conflict by limiting the scope of this requirement, so as to "limit the prohibition of employment of women in the above-mentioned occupations to the sole cases where this is necessary, in particular to protect motherhood, notably pregnancy, confinement and the post-natal period, as well as future children".

      - Conclusions X-2, page 97

1 ¹       Steering committee for equality between women and men, as from 1 January 1992. Previously, an ad hoc committee. Throughout this Report, the committee is referred to as CDEG.

2 ²       See Appendices 2 - 6.

3 ³       The full list of the main steering and ad hoc committees appears in Appendix 7.

4 ⁴       The Cultural Fund is the instrument for the financing of co-operation amongst States parties to the European Cultural Convention - members and non members of the Council of Europe alike - in the fields of education, culture and heritage.

5 ⁵       The European Youth Centre (EYC) is a co-operation and training centre open to European youth movements, financed by the Council of Europe.

6 ⁶       The European Youth Foundation contributes financially towards the organisation of events of European significance, presented and managed by youth movements.

7 ⁷       Body representing municipalities and regional authorities in Europe, set up by the Committee of Ministers of the Council of Europe in 1957.

8 ⁸       The working party consisted of representatives of the Administration and the staff.

9 ⁹       See appended tables for 1987-1991.

10 ¹⁰       The proportion of women recruited to fill A/L posts was only about 27% in 1989, but rose to almost 42% in 1990 and more than 44% in 1991.