Gender equality law in 33 European countries : how are EU rules transposed into national law in 2014 ?
Date: 2015-04-01
Institutions: Directorate-General for Justice and Consumers
Subjects: anti-discriminatory measure, application of EU law, equal treatment, gender equality, report, sexual discrimination

 ISSN 2315-3849

 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 
Directorate D — Equality 
Unit JUST/D1 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY 

Gender Equality Law in 33 European Countries: 
How are EU rules transposed into national law  
in 2014? 

Susanne Burri and Hanneke van Eijken 

2015 

Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Manuscript completed in February 2015. 
The  information  contained  in  this  report  reflects,  as  far  as  possible,  the  state  of 
affairs on 4 June 2014. 

Production 
Susanne Burri 
Hanneke van Eijken 
Titia Hijmans van den Bergh 
Klaartje Hoeberechts 
Alice Welland  

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Luxembourg: Publications Office of the European Union, 2015 

ISBN 978-92-79-45842-2  
ISSN  2315-3849   
DOI 10.2838/00406 

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Table of Contents 

Members of the European Network of Legal Experts in the Field of Gender Equality 

iii 

Part I 
Executive Summary 
Susanne Burri 

1.   Introduction 
2.   Transposition of EU gender equality law into national law 
3.   Central concepts of EU gender discrimination law 

3.1. The problem of comparisons 
3.2. Prohibition of discrimination 
3.3. Indirect discrimination 
3.4. Positive action 
3.5. Instruction to discriminate 
3.6. Harassment 

4.   Equal pay 

4.1. Equal pay 
4.2. What is ‘pay’ and what is ‘equal value’? 
4.3. Role for collective agreements and for employers 
4.4. Enforcing equal pay 

5.   Occupational pension schemes 

5.1. Uncertainty about the nature of national schemes 

6.   Access to work and working conditions 

6.1. Exceptions 
6.2 Occupational requirements 
6.3. Positive action once again 

7.   Pregnancy and maternity protection; maternity, paternity, parental and adoption 

leave 
7.1. Pregnancy and maternity 
7.2. Maternity leave 
7.3. Paternity, parental, adoption and child care leave 

8.   Statutory schemes of social security 
8.1. Family and survivor’s benefits 
8.2. Social assistance 
8.3. Derogations from equal treatment: periods of care 
8.4. Derogations from equal treatment: difference in pensionable age 

9.   Self-employed and assisting spouses 

9.1. Pregnancy, maternity and parental rights 
9.2. Professional status of assisting spouses 

10.  Goods and services 

10.1. Pregnancy, maternity and parenthood  
10.2. Derogations from equal treatment 

11.  Enforcement and compliance 
11.1. Judicial procedures 
11.2. Remedies and sanctions 
11.3. Victimisation 
11.4. Burden of proof 
11.5. Equality bodies 
11.6. The role of the social partners 

12.  Winding up: law in the books and law in practice 

1 
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Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

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Part II 
National Law: Reports from the Experts of the Member States,  EEA Countries, 

Croatia, Former Yugoslav Republic of Macedonia and Turkey 

AUSTRIA 
BELGIUM 
BULGARIA 
CROATIA 
CYPRUS 
CZECH REPUBLIC  
DENMARK 
ESTONIA  
FINLAND 
FRANCE  
GERMANY 
GREECE 
HUNGARY 
ICELAND 
IRELAND 
ITALY 
LATVIA 
LIECHTENSTEIN 
LITHUANIA 
LUXEMBOURG 
FYR of MACEDONIA 
MALTA 
THE NETHERLANDS 
NORWAY 
POLAND 
PORTUGAL 
ROMANIA 
SLOVAKIA 
SLOVENIA 
SPAIN 
SWEDEN 
TURKEY 
UNITED KINGOM 

Annex I 
Questionnaire 

Annex II 
EU Directives 

Annex III 
National legislation 

Annex IV 
Bibliography 

Annex V 
List of national equality bodies 

Martina Thomasberger 
Jean Jacqmain 
Genoveva Tisheva 
Nada Bodiroga-Vukobrat 
Lia Efstratiou-Georgiades 
Kristina Koldinská 
Ruth Nielsen 
Anu Laas 
Kevät Nousiainen 
Sylvaine Laulom 
Ulrike Lembke 
Sophia Koukoulis-Spiliotopoulos 
Beáta Nacsa 
Herdís Thorgeirsdóttir 
Frances Meenan 
Simonetta Renga 
Kristīne Dupate 
Nicole Mathé 
Tomas Davulis 
Anik Raskin 
Mirjana Najcevska 
Peter G. Xuereb 
Rikki Holtmaat 
Helga Aune 
Eleonora Zielińska 
Maria do Rosário Palma Ramalho 
Iustina Ionescu 
Zuzana Magurová 
Tanja Koderman Sever 
María Amparo Ballester Pastor 
Ann Numhauser-Henning 
Nurhan Süral 
Aileen McColgan 

43 
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109 
118 
125 
131 
137 
143 
152 
157 
164 
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193 
205 
211 
220 
228 
233 
239 
244 
251 

259 

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266 

281 

288 

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Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Members of the European Network of Legal Experts 
in the Field of Gender Equality 

Co-ordinator: 
Susanne Burri, Utrecht University, the Netherlands 
Assistant co-ordinator: 
Alice Welland, Utrecht University, the Netherlands 

Executive Committee: 
Hélène Masse-Dessen, Barrister at the Conseil d’Etat and Cour de Cassation, France 
Christopher McCrudden, Queen’s University Belfast, the United Kingdom 
Linda Senden, Utrecht University, the Netherlands 
Susanne Burri, Utrecht University, the Netherlands 

National experts: 
Martina Thomasberger (Austria), Legal expert in the Vienna Chamber of Labour, Department for 

Social Security 

Jean Jacqmain (Belgium), Free University of Brussels, Faculty of Law and Criminology 
Genoveva Tisheva (Bulgaria), Bulgarian Gender Research Foundation 
Nada Bodiroga-Vukobrat (Croatia), Professor, Head of Jean Monnet Department of European 

Public Law / University of Rijeka, Faculty of Law 
Evangelia Lia Efstratiou-Georgiades (Cyprus), Advocate 
Kristina Koldinská (Czech Republic), Charles University, Faculty of Law 
Ruth Nielsen (Denmark), Copenhagen Business School, Law Department 
Anu Laas (Estonia), Institute of Sociology and Social Policy, University of Tartu 
Kevät Nousiainen (Finland) Helsinki University, Faculty of Law 
Sylvaine Laulom (France), University Jean Monnet, Saint-Etienne, Faculty of Law 
Mirjana Najcevska (Former Yugoslav Republic of Macedonia), Professor of Human Rights, 
University ‘Ss. Cyril and Methodius’, Institute for Sociological, Political and Juridical 
Research, Skopje  

Ulrike Lembke (Germany), University of Hamburg, Faculty of Law 
Sophia Koukoulis-Spiliotopoulos (Greece), Attorney at Law 
Beáta Nacsa (Hungary), Eötvös Loránd University, Department of Labour and Social Law 
Herdís Thorgeirsdóttir (Iceland), Bifrost University, Faculty of Law 
Frances Meenan (Ireland), Barrister, Four Courts, Law Library, Dublin 
Simonetta Renga (Italy), Ferrara University, Faculty of Economics 
Kristīne Dupate (Latvia), University of Latvia, Faculty of Law 
Nicole Mathé (Liechtenstein), University of Vienna, Faculty of Law 
Tomas Davulis (Lithuania), Vilnius University, Faculty of Law 
Anik Raskin (Luxembourg), National Women’s Council of Luxembourg 
Peter G. Xuereb (Malta), University of Malta, Faculty of Law 
Rikki Holtmaat (the Netherlands), Independent Legal Consultant Expert 
Helga Aune (Norway), Attorney at Law 
Eleonora Zielinska (Poland), University of Warsaw, Faculty of Law and Administration 
Maria do Rosário Palma Ramalho (Portugal), University of Lisbon, Faculty of Law 
Iustina Ionescu (Romania), Independent Legal Advisor 
Zuzana Magurová (Slovakia), Slovak Academy of Sciences, Institute of State and Law 
Tanja Koderman Sever (Slovenia), Independent Legal Advisor 
María Amparo Ballester Pastor (Spain), University of Valencia, Faculty of Law 
Ann Numhauser-Henning (Sweden), Lund University, Faculty of Law 
Nurhan Süral (Turkey), Middle East Technical University, Faculty of Economics and 

Administrative Sciences 

Aileen McColgan (the United Kingdom), King’s College London 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

iii 

 
 
 
 
 
Part I 
Executive Summary 

Susanne Burri∗ 

1. Introduction 

The purpose of the present publication is to provide a general overview of the transposition of 
EU gender equality law in the 28 Member States of the European Union, as well as in Iceland, 
Liechtenstein and Norway (the EEA countries to which most of the EU equality law applies) 
and two candidate countries: the former Yugoslav Republic of Macedonia and Turkey.1 This 
summary  of  the  report  offers  a  comparative  analysis  of  the  transposition  of  EU  gender 
equality  rules  into  national  law.  This  publication  is  complementary  to  the  publication  EU 
Gender Equality Law, which provides an overview of relevant directives and case law of the 
Court of Justice of the EU (CJEU) in this field and which was last updated in 2013.2 These 
publications are aimed at a broad – and not necessarily legal – public and explain the most 
important issues of the EU gender equality acquis and its implementation. 

The  term  ‘EU  gender  equality  acquis’  refers  to  all  the  relevant  Treaty  and  Charter 
provisions, legislation and the case law of the CJEU in relation to gender equality. Another 
frequently used term is ‘sex equality’. Both terms are used in the present publication, more or 
less interchangeably. However, it should be noted that while the term ‘sex’ refers primarily to 
the biological condition and therefore also the difference between women and men, the term 
‘gender’ is broader in that it also comprises social differences between women and men, such 
as certain ideas about their respective roles within the family and in society. 

Since  the  entry  into  force  of  the  Lisbon  Treaty  on  1  December  2009,  the  European 
Community  and  the  EU  have  merged  into  one  single  legal  order,  the  European  Union. 
However, we continue to work with two treaties, the Treaty on European Union (TEU) that 
lays down the basic structures and provisions, and the Treaty on the Functioning of the EU 
(TFEU),  which  is  more  detailed  and  elaborates  the  TEU.3  In  addition,  the  Charter  of 
Fundamental Rights of the EU entered into force since 2009 and has the same legal value as 
the two Treaties (the TEU and the TFEU).4 The TEU, the TFEU and the Charter all contain 
provisions that are relevant in the field of gender equality. 

It  is  important  to  note that  one of the  values  on  which  the  EU is  based  is equality  between 
women  and  men  (Article  2  TEU).  The  promotion  of  equality  between  men  and  women 
throughout  the  European  Union  is  one  of  the  essential  tasks  of  the  EU  (Article  3(3)  TEU). 
Since the entry into force of the Lisbon Treaty, Article 8 TFEU specifies that: 

∗   Dr Susanne Burri is Associate Professor at the School of Law of Utrecht University and co-ordinator of the 
European Network of Legal Experts in the Field of Gender Equality. Thanks go to Hanneke van Eijken and 
Alice Welland for their comments on earlier drafts of this executive summary. 

1   A similar overview was published for the first time in November 2008 and was updated in 2009, 2010, 

2011and 2013: European Network of Legal Experts in the Field of Gender Equality, S. Prechal & S. Burri, 
updated by S. Burri & H. van Eijken, Gender Equality Law in 33 Countries. Update 2013, European 
Commission 2014. These publications are available at: http://ec.europa.eu/justice/gender-equality/document/
index_en.htm#h2-9 and EU Bookshop https://bookshop.europa.eu/en/home/, accessed 16 September 2014. 

2   European Network of Legal Experts in the Field of Gender Equality, S. Burri & S. Prechal, updated by 

S. Burri, EU Gender Equality Law. Update 2013, European Commission 2014, available at: 
http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9 and EU Bookshop, accessed 
15 September 2014.  

3   See Article 1 TEU which provides ‘(…) The Union shall be founded on the present Treaty and on the Treaty 
on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’). Those two Treaties shall 
have the same legal value. The Union shall replace and succeed the European Community.’  

4   See Article 6(1) TEU. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

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 ‘In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between 
men and women.’ 

And  Article  10  TFEU  contains  a  similar  obligation  for  all  the  discrimination  grounds 
mentioned in Article 19 TFEU, including sex:  

‘In  defining  and  implementing  its  policies  and  activities,  the  Union  shall  aim  to  combat 
discrimination  based  on  sex,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual 
orientation’. 

This obligation of gender mainstreaming means that both the EU and the Member States shall 
actively  take  into  account  the  objective  of  equality  between  men  and  women  when 
formulating  and  implementing  laws,  regulations,  administrative  provisions,  policies  and 
activities.5 Although these provisions do not create enforceable rights for individuals as such, 
they are important for the interpretation of EU law and they impose obligations on both the 
EU and the Member States. 

The Charter of Fundamental Rights of the EU, inter alia, prohibits discrimination on any 
ground, including sex (Article 21);6 it recognises the right to gender equality in all areas, thus 
not only in employment, and the possibility of positive action for its promotion (Article 23). 
Furthermore,  it  also  defines  rights  related  to  family  protection  and  gender  equality.  The 
reconciliation  of  family/private  life  with  work  is  an  important  aspect  of  the  Charter;  the 
Charter guarantees, inter alia, the ‘right to paid maternity leave and to parental leave’ (Article 
33).  Since  the  entry  into  force  of  the  Lisbon  Treaty,  the  Charter  has  become  a  binding 
catalogue of EU fundamental rights (see Article 6(1) TEU), addressed to the EU institutions, 
bodies,  offices and  agencies,  and  to  the  Member  States  when they  are implementing  Union 
law (Article 51(1) of the Charter).7 

This publication gives a country-by-country overview of how each State has implemented EU 
gender  equality  law,  in  particular  the  relevant  directives.8  The  individual  national  reports 
present the implementation of central concepts in national law; equal pay, equal treatment in 
relation to access to work, working conditions (including dismissal) and occupational social 
security schemes (matters covered by Article 157 TFEU9 and the so-called Recast Directive 
2006/54/EC10),  pregnancy  and  maternity  protection  and  parental  leave  and  adoption  leave 
(matters covered by Directives 92/85/EEC, 2006/54/EC and 2010/18/EU11), statutory schemes 
of social security (Directive 79/7/EEC), and self-employed persons (Directive 2010/41/EU12). 
The  issue  of  equal  treatment  of  men  and  women  in  the  access  to  and  supply  of  goods  and 
services (Directive 2004/113/EC) is covered as well. The country reports also pay attention to 
enforcement  and compliance  aspects.  A  brief  assessment  of  national  gender equality  law  in 
the  light  of  EU  requirements  is  provided  by  each  of  the  33  experts  participating  in  the 

5   See also Article 29 of the Recast Directive (2006/54/EC). 
6   The scope of the prohibition of sex discrimination is limited however by the explanations for the Charter, see 

2007/C 303/02.   

7   See S. Koukoulis-Spiliotopoulos ‘The Lisbon Treaty and the Charter of Fundamental Rights: maintaining and 
developing the acquis in gender equality’, European Gender Equality Law Review No. 1/2008, pp. 15-24 and 
E. Ellis, ‘The Impact of the Lisbon Treaty on Gender Equality’, European Gender Equality Law Review 
No. 1/2010, pp. 7-13; available at: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, 
accessed 16 September 2014. 

8   The full – official – name of the respective directives and their publication are included in Annex II. Annex IV 

contains a selected bibliography of EU gender equality law (in English or French). 

9   Ex Article 119 EEC Treaty, Article 141 EC. 
10   This Directive repealed Directives 75/117/EEC, 76/207/EEC (amended by Directive 2002/73/EC), 

1986/378/EEC (amended by Directive 96/97/EC) and 1997/80/EEC with effect from 15 August 2009. 

11   Which repealed Directive 96/34/EC with effect from 8 March 2012. 
12   Which repealed Directive 86/613/EEC with effect from 5 August 2012. 

2 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
                                                      
European  Commission’s  European  Network  of  Legal  Experts  in  the  Field  of  Gender 
Equality.13   

2. Transposition of EU gender equality law into national law 

The development of EU gender equality law and its transposition into national law has been a 
step-by-step process, starting, at least for the ‘oldest’ EU Member States, in the early sixties. 
In  1957,  the  Treaty  establishing  the  European  Economic  Community  (EEC),  which  is  the 
origin  of  the  current  EU,  contained  only  one  single  provision  (Article  119  EEC  Treaty,  ex 
Article  141  EC  Treaty,  now  Article  157  TFEU)  on  gender  discrimination,  namely  the 
principle of equal pay between men and women for equal work. Since then, however, many 
directives  have  been  adopted  which  prohibit  discrimination  on  the  grounds  of  sex:  the 
Directive on equal pay for men and women (75/117/EEC), the Directive on equal treatment of 
men  and  women  in  employment  (76/207/EEC,  amended  by  Directive  2002/73/EC  and  now 
repealed by the Recast Directive 2006/54/EC), the Directive on equal treatment of men and 
women in statutory schemes of social security (79/7/EEC), the Directive on equal treatment of 
men and women in occupational social security schemes (86/378/EEC, amended by Directive 
96/97/EC  and  now  repealed  by  the  Recast  Directive  2006/54/EC),  the  Directive  on  equal 
treatment of men and women engaged in an activity, including agriculture, in a self-employed 
capacity (86/613/EEC, repealed by Directive 2010/41/EU), the Pregnant Workers’ Directive 
(92/85/EEC), the Parental Leave Directive (96/34/EEC, repealed by Directive 2010/18/EU), 
the Directive on equal treatment of men and women in the access to and the supply of goods 
and  services  (2004/113/EC)  and,  finally,  the  already  mentioned  so-called  Recast  Directive 
(2006/54/EC).  Recasting  existing  directives  on  equal  pay  (including  occupational  social 
security schemes), equal treatment at work and the burden of proof, was aimed at clarification 
and  bringing  together  in  a  single  text  the  main  provisions  of  the  directives  subject  to  this 
recasting process.14 Some case law of the CJEU was also partly incorporated.15 This Court has 
played  a  very  important  role  in  the  field  of  equal  treatment  between  men  and  women,  by 
ensuring  that  individuals  can  effectively  invoke  and  enforce  their  right  to  gender  equality. 
Similarly,  it  has  delivered  important  judgments  interpreting  EU  equality  legislation  and 
relevant Treaty provisions.  

At  the  national  level,  the  Treaty  provisions  and  the  directives  must  be  implemented.  This 
means  that  in  so  far  that  national  law  does  not  yet  fully  comply  with  the  EU  provisions,  a 
transposition of the legal provisions into national law is necessary. This was partly done by 
amending  relevant  national  legislation,  such  as  Labour  Codes,  legislation    relating  to 
employment  and  social  security  legislation,  and/or  the  adoption  of  specific  Acts  on  gender 
equality  and/or  non-discrimination.  In  more  recent  years,  legislation  on  equal  treatment  of 
women  and  men  has  been  incorporated  in  some  countries  into  general  anti-discrimination 
laws  which  also  relate  to  other  grounds,  such  as  race,  disability  or  sexual  orientation  (e.g. 
Bulgaria,  Czech  Republic,  Hungary,  Ireland,  Poland,  Romania,  Slovakia,  Slovenia, 
Sweden and the United Kingdom). Some countries now both have an Anti-Discrimination 
Act and a Gender Equality Act (e.g. Belgium, Croatia, Denmark, Lithuania, Romania and 
the Netherlands), or specific Acts for each gender equality and non-discrimination directive 
(Greece).  In  Romania, the  anti-discrimination  legislation  and the specific law dealing  with 
gender equality have evolved separately, having been amended several times in the past ten 
years.  This  has  resulted  in  overlap  of  the  various  provisions  and  in  differences  in  legal 
protection. However, in case of conflicting provisions, the lex specialis (the Gender Equality 

13   In Annex III the reader can find an overview, per country, of the most important legislation enacted in order to 

implement the directives or Treaty provisions respectively.  

14   The following directives were subject to this recasting exercise: 75/117/EEC, 76/207/EEC, 86/378/EEC and 

97/80/EEC: see Article 34 of Recast Directive 2006/54/EC. 

15   Until the entry into force of the Lisbon Treaty: the European Court of Justice (ECJ). In this report, reference is 

made to the Court of Justice of the EU (CJEU or Court), also in cases pre-dating the Lisbon Treaty. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

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Law)  prevails.  In  Lithuania  the  double  coverage  of  gender  discrimination  in  two  separate 
Acts may result in misunderstandings in the application of the law, as both acts regulate the 
contextually same issue in slightly different ways and to different extents. 

In  some  countries,  provisions  in  their  Constitution  might  play  an  important  role  in 
guaranteeing equality between women and men (e.g. Belgium, Cyprus, Greece, Germany, 
Iceland,  Latvia,  Portugal  and  Spain).  Turkey  has  no  specific  anti-discrimination  law  to 
supplement its constitutional provisions.  

3. Central concepts of EU gender discrimination law  

The  central  concepts  of  EU  gender  equality  law  are  laid  down  in  most  gender  equality 
directives16 and are often the subject of further interpretation by the CJEU. The following five 
concepts are briefly discussed: 

– 

–  Direct  discrimination  occurs  ‘(…)  where  one  person  is  treated  less  favourably  on 
grounds of sex than another is, has been or would be treated in a comparable situation.’ 
As a rule, direct discrimination is prohibited, unless a specific written exception applies, 
such  as  that  the  sex  of  the  person  concerned  is  a  determining  factor  for  the  job,  for 
example a male character in a film has to be a man. 
Indirect  discrimination  occurs  ‘(…)  where  an  apparently  neutral  provision,  criterion  or 
practice would put persons of one sex at a particular disadvantage compared with persons 
of  the  other  sex,  unless  that  provision,  criterion  or  practice  is  objectively justified  by  a 
legitimate aim, and the means of achieving that aim are appropriate and necessary.’  
Indirect discrimination is very much concerned with the effects of a certain treatment and 
takes  into  account  everyday  social  realities.  For  instance,  less  favourable  treatment  of 
part-time workers will often amount to indirect discrimination against women as long as 
women  are  mainly  employed  on  part-time  terms.  Unlike  in  the  case  of  direct 
discrimination, the possibilities for justification are much broader.17 

–  The concept of positive action is defined in EU law as follows: ‘With a view to ensuring 
full equality in practice between men and women in working life, the principle of equal 
treatment  shall  not  prevent  any  Member  State  from  maintaining  or  adopting  measures 
providing for specific advantages in order to make it easier for the underrepresented sex 
to pursue a vocational activity or prevent or compensate for disadvantages in professional 
careers.’  Like  indirect  discrimination,  positive  action  also  takes  into  account  everyday 
social realities but it goes much further, in the sense that it may require further steps to be 
taken in order to realise true, genuine equality in social conditions. 
The provisions permitted as positive action measures aim at eliminating or counteracting 
the detrimental effects on women in employment or in seeking employment which arise 
from  existing  attitudes,  behaviour  and  structures  based  on  the  idea  of  a  traditional 
division of roles in society between men and women. Similarly, they should help to fight 
stereotypes.  As  an  example  of  positive  action  the  following  can  be  mentioned:  the 
preferential treatment of female employees in the allocation of nursery places when the 
number  of  places,  due  to  financial  constraints,  is  rather  limited  or  –  even  more  far-
reaching and controversial – female quotas in recruitment and promotion.18 

16   The definitions given here are from Recast Directive 2006/54. 
17   See the report produced by the European Network of Legal Experts in the Field of Gender Equality, 

C. McCrudden & S. Prechal, The Concepts of Equality and Non-Discrimination in Europe: A practical 
approach, European Commission 2009, available at: http://ec.europa.eu/justice/gender-equality/document/
index_en.htm#h2-9, accessed 1`6 September 2014.  

18   See the reports produced by the European Network of Legal Experts in the Field of Gender Equality, 

S. Fredman, Making Equality Effective: The role of proactive measures, European Commission 2009 and 
G. Selanec & L. Senden, Positive Action Measures to Ensure Full Equality in Practice between Men and 
Women, including on Company Boards, European Commission 2011, available at: http://ec.europa.eu/
justice/gender-equality/files/gender_balance_decision_making/report_gender-balance_2012_en.pdf and at EU 
Bookshop; and L. Senden & M. Visser, ‘Balancing a Tightrope: The EU Directive on Improving the Gender 

4 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
  
 
 
 
                                                      
 
– 

Instruction  to  discriminate  on  grounds  of  a  person’s  sex  is  in  EU  law  equated  with 
discrimination. Thus, where an agency is requested by an employer to supply workers of 
one sex only, both the employer and the agency would be liable and would have to justify 
such sex discrimination. 

–  Both harassment on grounds of a person’s sex and sexual harassment are equated with 

sex discrimination and are explicitly prohibited. They cannot be justified. 
Harassment occurs ‘(…) where unwanted conduct related to the sex of a person occurs 
with  the  purpose  or  effect  of  violating  the  dignity  of  a  person,  and  of  creating  an 
intimidating, hostile, degrading, humiliating or offensive environment.’ 
Sexual  harassment  occurs  ‘(…)  where  any  form  of  unwanted  verbal,  non-verbal  or 
physical  conduct  of  a  sexual  nature  occurs,  with  the  purpose  or  effect  of  violating  the 
dignity  of  a  person,  in  particular  when  creating  an  intimidating,  hostile,  degrading, 
humiliating or offensive environment.’ Both concepts include the violation of a person’s 
dignity  and  the  creation  of  an  intimidating,  hostile,  degrading,  humiliating  or  offensive 
environment. The main difference is that in case of harassment on grounds of a person’s 
sex, the person is ill-treated because he or she is a man or a woman. In the case of sexual 
harassment  it rather involves  a  person  being  subject  to  unwelcome  sexual  advances  or, 
for  instance,  that  the  behaviour  of  the  perpetrator  aims  at  obtaining  sexual  favours.  In 
concrete situations the distinction between the two may be very unclear indeed.19 

How  are  these  central  concepts  reflected  in  the  national  law  of  the  EU  Member  States,  the 
EEA  countries  and  the  candidate  countries?  Overall,  national  law  has  faithfully  and  often 
even  literally  transposed  these  concepts  into  national  legislation.  In  Turkey,  labour  and 
criminal  laws  referred  to  the  concepts  of  direct  discrimination,  indirect  discrimination  and 
sexual  harassment,  with  the  exception  of  moral  harassment.  However,  these  concepts  were 
not defined in legislation or in case law until a new law was enacted in February 2014.20 The 
Law amending the Law on the Disabled defines direct and indirect discrimination with regard 
to  the  disabled  in  line  with  the  EU  definitions.  In  the  Czech  Republic,  concepts  of 
discrimination  are  only  defined  in  the  Anti-Discrimination  Act,  and  not  for  example  in  the 
Labour  Code  or the  Employment  Act,  which  also  contain  anti-discrimination  provisions.  In 
Hungary, the definition of  direct  discrimination  offers  less  protection because  it  allows the 
possibility of exemption due to the enforcement of another person’s fundamental right, if it is 
suitable  for  the  designated  purpose  and  proportional,  or  otherwise  has  a  reasonable  and 
objective explanation directly related to the relationship.21  

In some countries, national legislation is stricter than EU requirements or provides more 
protection than required by EU law. Estonia, for example, has a broader definition of direct 
sex discrimination. In addition to less favourable treatment in connection with pregnancy and 
childbirth,  it  also  relates  to  less  favourable  treatment  in  connection  with  parenting  and  the 
performance  of  family  obligations.22  The  Irish  Employment  Equality  Acts  state  that 
‘discrimination shall be taken to occur where a person is treated less favourably than another 
person is, has been or would be treated in a comparable situation on any of the grounds which 
exists,  existed  but  no  longer  exists,  may  exist  in  the  future  or  is  imputed  to  the  person 
concerned’.23 The law of the United Kingdom covers not only discrimination against women 
and  men  but  also  explicitly  prohibits  discrimination  against  a  person  who  is  ‘proposing  to 

Balance among Non-Executive Directors of Boards of Listed Companies’, European Gender Equality Law 
Review 1/2013, pp. 17-33, available at: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-
9, both accessed 16 September 2014.  

19   See the report of the European Network of Legal Experts in the Field of Gender Equality, A. Numhauser-

Henning & S. Laulom, Harassment related to Sex and Sexual Harassment Law in 33 European Countries. 
Discrimination versus Dignity, European Commission, 2011, available at: http://ec.europa.eu/justice/gender-
equality/document/index_en.htm#h2-9 and EU Bookshop /, accessed 16 September 2014. 

20  Law no. 6518, Official Gazette 19 February 2014, no. 28918. 
21   Article 7(2) of the Equality Act. 
22   Article 3(3) Gender Equality Act. 
23   Section 6 of the Employment Equality Act 1998 (as amended). 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

5 

 
 
                                                                                                                                                        
undergo,  is  undergoing  or  [who]  has  undergone  a  process  (or  part  of  a  process)  for  the 
purpose  of  reassigning  the  person’s  sex  by  changing  physiological  or  other  attributes  of 
sex’.24  In  addition,  the  UK  Equality  Act  2010  contains  a  provision  prohibiting  ‘dual 
discrimination’  (Section  14),  defined  as  direct  discrimination  on  two  combined  protected 
grounds.  However,  this  provision  does  not  apply  to  indirect  discrimination,  or  to 
discrimination on a combination of more than two grounds, and there are no current plans to 
implement Section 14.  

In the following sub-sections some striking features, differences and problems related to 
the  application  of  the  concepts  of  direct  and  indirect  discrimination,  positive  action, 
harassment and sexual harassment are highlighted. 

3.1. The problem of comparisons 
It is for instance noteworthy that for example in the United Kingdom much emphasis is put 
on the comparison, i.e. a person who is treated less favourably should be compared to another 
person who is in a comparable situation. The comparator may be real or hypothetical. In some 
other  countries  discrimination,  or  at  least  a  serious  presumption  of  discrimination,  is 
sometimes  more  readily  accepted.  It  suffices  to  establish  that  a  person  has  been  put  at  a 
disadvantage  for  reasons  of  being  female  or  male,  without  engaging  extensively  in 
comparisons of the situations. The French Cour de Cassation for example acknowledges that 
the existence of discrimination does not necessarily imply a comparison with other workers.25 
However,  in  equal  pay  cases  for  instance,  comparisons  of  the  work  performed  are  often 
necessary. 

It is generally accepted that a comparison is not required in the case of pregnancy. This is 
also the view of the CJEU. The Court held that the refusal to appoint a woman because she 
was pregnant amounts to direct sex discrimination, which is prohibited. 26  

3.2. Prohibition of discrimination 
In  relation  to  the  prohibition  of  discrimination,  in  some  countries  specific  problems  arise 
because  words  other  than  discrimination  are  used.  In  the  Netherlands,  discrimination  was 
defined in more neutral terms, namely ‘distinction’. Such a term  may suggest that each and 
every  differentiation  between  categories  of  people  amounts  to  discrimination. The  use 
‘distinction’,  for  that  reason,  is  almost  always  immediately  accompanied  with  the  adjective 
‘unjustified’.  The  European  Commission  criticised  the  use  of  the  term  ‘distinction’  and  the 
fact that the definitions of direct and indirect discrimination are not similar to the definitions 
in the directives. As part of the general integration of Dutch equal treatment acts, a proposal is 
pending to change the definition, using the term discrimination instead of distinction. In two 
other  countries,  Latvia  and  Norway,  discrimination  is  also  defined  in  terms  of  differential 
treatment.  Some  Latvian  case  law  reflects  a  problematic  use  of  this  approach,  when  for 
example  equal  treatment  of  persons  in  different  situations  is  not  considered  to  be 
discriminatory.  Germany  has  opted  to  use  the  term  Benachteiligung  (putting  at  a 
disadvantage) instead of discrimination, as ‘discrimination’ was considered to have a strong 
‘disapproving’ impact. This terminology is not meant to weaken the protection as compared 
to EU directives. In Belgium a somewhat complex situation exists as to the terms used. There 
is  settled  case  law  that  considers any  form  of  discrimination  potentially  justifiable,  whether 
direct  or  indirect.  Since  the  first  situation  –  direct  discrimination  –  can  in  principle  not  be 
justified  under  EU  law,  unless  one  of  the  exceptions  applies,  a  somewhat  problematic 
differentiation  has  been  created  between  making  a  ‘distinction’  on  the  one  hand,  and 
discrimination on the other. Discrimination covers a distinction which cannot be justified and 

24   Section 7 of the Equality Act. According to EU law, discrimination in relation to gender reassignment amounts 
to sex discrimination: see Case C-13/94 P v S and Cornwall County Council [1996] ECR I-2143 (P/S) and 
Preamble 3 of Recast Directive 2006/54/EC. 

25   Soc. 10 November 2009, No. 07-42849 and Soc. 29 June 2011, No. 10-14067. 
26   8 November 1990, Case C-177/88 Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong 

Volwassenen (VJV-Centrum) Plus [1990] ECR I-03941 (Dekker). 

6 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
                                                      
it applies in areas covered by EU law. In other areas, however, even the making of a direct 
distinction can be justified. For ordinary citizens, this indeed renders the application of gender 
equality  law  rather  complex.  Even  courts  might  not  understand  such  subtleties  and  the 
protection provided by EU law is thus weakened. 

3.3. Indirect discrimination 
The  concept  of indirect discrimination  has  also  posed  or  still poses  problems.  In  Hungary, 
the  concept  of  indirect  discrimination  is  narrower  than  the  EU  definition  by  stipulating  a 
‘considerably  larger  disadvantage’  compared  to  a  ‘particular  disadvantage’  as  mentioned  in 
Article 2(1)(b) of the Recast Directive. There were no proper definitions of direct and indirect 
discrimination  in  French  law  until  May  2008,  when  a  new  Act  was  adopted.  In  Slovakia, 
potential  indirect  discrimination  was  not  prohibited  until  1  April  2013,  since  then  the 
definition  of  indirect  discrimination  is  in  line  with  EU  law.  The  Croatian  Gender  Equality 
Act  does  not  explicitly  allow  a  comparison  with  hypothetical  situations,  as  required  by  EU 
law, while the Anti-Discrimination Act does. Although there is no case law that addresses this 
issue, the national expert considers it highly unlikely that the courts would adhere to the strict 
grammatical interpretation of the provision from the GEA. 

There  are  also  bright  spots,  however.  In  Poland, the amended  Labour  Code  drastically 
improved the definition of indirect discrimination. It now includes a reference to both existing 
and hypothetical situations. It also mentions not only particularly disadvantageous situations, 
but also unfavourable disproportions. Finally, it also makes reference to ‘legitimate aim’ and, 
as  regards  the  means  to  achieve  this  aim,  to  the  principle  of  proportionality.  All  these 
elements were lacking before the amendment. Interestingly, in Finland the alleged victim of 
indirect  discrimination  has  to  prove  that  the  effect  of  certain  treatment  amounts  to  a  less 
favourable position, which is easier to prove than a particular disadvantage. In Italy, neutral 
criteria  which  result  in  disproportionate  impact  are  only  legitimate  if  they  are  essential 
requirements for the job. 

In Greece, to the knowledge of the national expert the notions of indirect discrimination 
and  instruction  to  discriminate  have  not  yet  been  applied  in  case  law.27  In  addition,  in 
Bulgaria for  example, case  law  up to now  mainly  addresses  direct discrimination.  In  many 
countries,  there  is  only  scarce  case  law  on  indirect  sex  discrimination  and  when  at  stake, 
courts  face  difficulties  when  applying  this  concept  (e.g.  Germany).  Recently,  the  French 
Cour  de  Cassation  applied  this  concept  in  two  cases.28  The  Spanish  Constitutional  Court 
considered disadvantages faced by part-time workers in relation to pensions a form of indirect 
sex discrimination.29 

3.4. Positive action 
The concept of  positive  action, although  often  a controversial issue,  has  been  transposed  in 
most of the countries. As a rule, it may apply in the various areas covered by EU law, such as 
employment,  occupational  pension  schemes  and  access  to  and  the  provision  of  goods  and 
services.  The  most  important  area  for  positive  action  has,  up  until  now,  been  access  to 
employment and working conditions. In Bulgaria, positive action measures may also be taken 
in  education  and  training  to  ensure  a  fair  participation  of  men  and  women,  thus  beyond 
employment and sometimes including quotas in education. Positive action measures are also 
explicitly allowed in education for example in Finland and Sweden. In the United Kingdom, 
the  Equality  Act  2010  widened  the  possibilities  for  positive  action,  both  in  and  outside  the 
context of recruitment and promotion. 

27   Please see the references to CS cases numbers 1247/2008; 2367/2010; 2369/2010; and 18/2014 in the Greek 

contribution to this report, at p 127. 

28   Soc. 6 June 2012, No. 10-21489 and Soc. 3 July 2012, No. 10-23013. 
29   Judgment of the Constitutional Court 61/2013 of 14 March 2013. See Case C-385/11 Isabel Elbal Moreno v 
Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS) 
[2012], n.y.p. (Elbal Moreno) 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

7 

 
 
 
 
                                                      
In many countries, positive action measures are not very widespread and are hardly seen 
as  a  priority  by  the  legislature,  social  partners,  or  individual  employers.  Whenever  positive 
action  measures  exist,  they  appear  to  be  more  frequent  in  the  public  sector.  Where  no 
obligations  are  laid  down,  the  public  sector  is  at  least  encouraged  to  take  positive  action 
measures.  In  the  private  sector  such  measures  are,  on  the  whole,  voluntary.  Only  in  a  few 
countries  obligations  exist  for  the  private  sector,  for  instance  in  the  form  of  equality  plans 
(e.g. Finland and Sweden). In any case, targets and quotas for the promotion or recruitment 
of  women  in  employment  are  rare.  Measures  tending  to  facilitate  vocational  training  for 
women  are  more  widespread.  In  some  countries  measures  aimed  at  reconciliation  between 
work  and  family  life  are  sometimes  framed  as  positive  action  measures,  for  instance  in 
Iceland, Norway and Italy.30 Recently, some countries have adopted legislation aimed at a 
more  balanced  gender  representation  in  company  boards  (e.g.  Finland,  France,  Germany, 
Iceland,  Italy,  the  Netherlands  and  Norway).31  In  Bulgaria,  however,  the  possibility  to 
apply  quotas  for  a  balanced  gender  representation  in  managing  and  advisory  bodies  was 
abolished in 2006. The issue of positive action in (access to) employment will be addressed 
briefly in Section 6.3, but it is now appropriate to make some general observations.  

The provisions on positive action can be laid down in t a country’s Constitution, and this  has 
been done, for instance, in Greece, Portugal and Spain. It would appear that only in Greece 
and  Portugal  are  positive  action  measures  explicitly  qualified  by  the  Constitution  not  as 
derogation from the principle of equal treatment, but rather as a means by which to achieve 
equality. In Greece, Article 1164(2) of the Constitution requires that the legislature and other 
state  authorities  take  the  positive  action  measures  that  are  necessary  and  pertinent  for 
promoting gender equality in all areas.32 

In other countries the provisions are of a legislative nature. They are often contained in 
legislation aiming at equality of opportunity between men and women or in more general anti-
discrimination  legislation (e.g.  Austria,  Denmark, Finland,  Germany,  Norway,  Slovakia, 
Slovenia, Spain and Sweden).  In  Latvian  law,  there  are  no  provisions  on  positive  action, 
except one provision concerning judges. 

In  principle,  positive  action  provisions  are,  as  in  EU  law,  permissive  in  nature,  i.e.  it  is 
allowed  on  certain  conditions,  but  it  is  not  laid  down  as  an  obligation.  For  example  in 
Croatia, ‘specific measures’ can be taken to promote equal participation of men and women 
in  legislative,  executive  and  judicial  bodies,  including  public  services,  when  one  gender  is 
‘substantially  underrepresented’.  In  decision-making  bodies  in  political  and  public  life,  less 
than 40 % amounts to substantial underrepresentation. 

However, in some countries specific forms of positive action are framed as an obligation, 
often  applicable  in  the  public  sector  and/or  to  company  boards.  For  instance,  in  the  public 
sector in Austria, the preferential treatment of a female candidate who is equally as qualified 
as  a  male  candidate  is  obligatory.  In  Finland,  different  positive  action  measures  have  been 
developed.  A  minimum  of  40 %  of  men  and  women  is  required  in  all  publicly-nominated 
administrative bodies. Authorities and educational institutions must create administrative and 
operational practices that advance equality in decision-making. Gender balance is required for 
the boards of directors in companies with a majority public ownership. Employers of at least 
30 people must prepare an annual equality plan, with an assessment of the equality situation at 
the  workplace  and  a  plan  on  how  equality  is  to  be  achieved.  Similar  obligations  apply  to 
educational  institutions.  However,  sanctions  are  lacking.  In  France,  a  Law  introducing  a 

30   Similarly, see Case C-476/99 H. Lommers v Minister van Landbouw, Natuurbeheer en Visserij [2002] ECR 

I-2891 (Lommers). 

31   A proposal for a directive on Gender balance among non-executive directors of companies listed on stock 

exchanges is pending: COM 2012(614). 

32   CS 2832-2833/2003, 192/2004. 

8 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
                                                      
quota  in  company  boards  was  adopted  in  2011.33  The  Law  intends  to  improve  the 
representation of women in company boards. Firms which have more than 500 employees and 
revenues  over  EUR  50  million  will  have  to  ensure  that  each  sex  has  at  least  20 %  of 
boardroom seats (with no distinction between executives and non-executives) within 3 years, 
and 40 % by 2017. In Germany public institutions are under an obligation to adopt equality 
plans  to  increase  women’s  representation.  In  Iceland  the  law  also  imposes  obligations 
concerning  a  balanced  participation  of  women  and  men  among  others  in  government  and 
municipal committees, councils and boards of certain companies, where representation must 
not  be  lower  than  40 %.  In  Italy  positive  actions  are  promoted  and  supported  by  special 
funding both in the private and the public sector. In the Civil Service, positive action plans 
have  to  be  drawn  up  every  three  years  regarding  jobs  and  levels  where  women  are 
underrepresented.  In  2011  a  quota  system  was  introduced  for  the  appointment  of  managing 
directors and auditors of listed companies and state subsidiary companies. According to this 
quota system, each sex must represent a proportion of at least one third. This rule is enforced 
for  three  periods  of  tenure  of  directors  and  auditors,  and  punitive  sanctions  may  eventually 
result  in  the  dissolution  of  the  company  board.  In  addition  to  the  quota  system,  new 
regulations  were  adopted  that  aim  to  facilitate  a  more  balanced  representation  of  men  and 
women  in  company  boards,  in  politics,  and  in  public  administration.  In  Luxembourg, 
employers can receive financial support when employing people of the underrepresented sex 
(i.e.  less than 40 %  of the total  workforce  of this  occupation  at  national  level). Since 2011, 
Dutch  public  and  private  limited  companies  with  more  than  250  employees  have  an 
obligation  to  strive  for  30  %  of  women  on  their  board  of  executive  directors  and  on  their 
advisory board, although there are no sanctions when the target is not met. Similar measures 
apply in Portugal.  Norway has legislation requiring a  minimum representation of 40 % of 
each  gender  in  company  boards.  A  proposal  for  a  directive  aimed  at  improving  the  gender 
balance in company boards is pending. 34 

3.5. Instruction to discriminate 
In  most  countries,  the  prohibition  concerning  the  instruction  to  discriminate  is  similarly 
formulated as in EU law and not further defined (see above). Some countries have adopted a 
legal  definition.  In  Bulgaria,  it  means  direct  and  intentional  encouragement,  giving  an 
instruction,  exerting  pressure  or  persuading  someone  to  engage  in  discrimination  where  the 
instigator  is  capable  of  influencing  the  person  instigated.  In  Croatia,  there  was  confusion 
whether intent is required or not, a requirement which is not mentioned in Article 2(2)(b) of 
the  Recast  Directive.  The  instruction  to  discriminate  in  German  law  is  also  understood  to 
constitute  discrimination,  and  is  not  limited  to  instruction  to  discriminate  against  an 
employee.  In  Greece,  the  Act  transposing  Directive  2004/113  uses  the  wider  term 
‘encouragement’ and the Act transposing Directive 2010/41 uses both terms. Therefore, both 
Acts  exceed  the  directives.  The  Dutch  equality  body  has  suggested  that  the  instruction  to 
discriminate  (in  Dutch  law,  to  make  a  ‘distinction’,  see  Section  3.2.)  should  include  a 
prohibition of passive tolerance of an existing situation or act.35 However, no case law on the 
matter has yet clarified this issue. In Slovakia, two definitions in the Anti-Discrimination Act 
clarify the prohibition: in the instruction to discriminate and in the incitement to discriminate. 
Incitement to discriminate is persuading, affirming or inciting a person to discriminate against 
a  third  person  and  the  prohibition  applies  to  all  types  of  relations  in  areas  where 
discrimination  is  prohibited.  The  prohibition  is  also  defined  in  the  Swedish  Discrimination 

33   Loi no. 2011-103 du 27 janvier 2011, JO no. 23 du 28 janvier 2011, relative à la représentation équilibrée des 
femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité professionnelle. 

34   COM (2012) 614. See for more information: http://ec.europa.eu/justice/gender-equality/files/gender_

balance_decision_making/boardroom_factsheet_en.pdf, accessed 16 September 2014. 

35   ETC Advice 2001-03, p. 6 and 2001-04, p. 4. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

9 

 
                                                      
Act and in the United Kingdom Equality Act. There seems to be no national case law (yet) 
on this prohibition of discrimination.36 

3.6. Harassment 
In some countries, the prohibitions of harassment and sexual harassment apply to a broader 
area  than  employment  (e.g.  Bulgaria  and  Finland).  In  most  countries,  the  prohibition  of 
harassment  and  sexual  harassment  is  framed  similarly  to  EU  law.  However,  in  some 
countries, legislation goes a step further. In Iceland, harassment is defined as: ‘Any type of 
unfair and/or insulting behaviour which is connected with the gender of the person affected by 
it,  is  unwelcome  and  impairs  the  self-respect  of  the  person  affected  by  it,  and  which  is 
continued in spite of a clear indication that it is unwelcome. This harassment may be physical, 
verbal or symbolic. A single instance may be considered as gender-based harassment if it is 
serious’. The Icelandic definition of sexual harassment is similar to the one of harassment. In 
Ireland,  legislation  clarifies  that  the  unwanted  conduct  (a  constituent  element  in  the 
definition  of  harassment)  may  consist  of  acts,  requests,  spoken  words,  gestures  or  the 
production,  display  or  circulation  of  written  words,  pictures  or  other  material  and  that  an 
employee  must  not  be  victimised  for  rejecting  such  harassment.  Some  countries  adopted 
(slightly)  different  definitions.  In  the  United  Kingdom,  the  definition  of  harassment  and 
sexual harassment in the Equality Act 2010 covers unwanted conduct whose purpose or effect 
is  to  violate  a  person’s  dignity  or  (rather  than  and)  to  create  an  intimidating,  hostile, 
degrading,  humiliating  or  offensive  environment  for  her  (Section  26).  The  definition  of 
harassment is therefore wider than that required by EU law. Where the effect, rather than the 
purpose, of treatment is relied upon to establish harassment, Section 26(4) of the Act imposes 
a  soft  objective  test.  This  is  because  Section  26(4)  provides  that  the  perception  of  the 
complainant,  the  other  circumstances  of  the  case,  and  whether  it  is  reasonable  to  regard 
conduct as having  a  particular  effect  may  be  taken into account  in  determining  whether  the 
conduct had the effect of violating dignity or creating an intimidating (etc.) environment.  

Some countries adopted slightly different definitions than EU law. In the Netherlands, 
the word ‘unwanted’ is lacking in the definition of sexual harassment in order to place a less 
heavy  burden  of  proof  on  the  victim  to  show  that  the  sexual  harassment  was  (subjectively) 
unwanted. In the view of the Dutch Government, sexual harassment is, objectively speaking, 
always an offence. In Slovakia, the definition of sexual harassment does not explicitly refer to 
‘unwanted conduct’.  

The  transposition  of  the  prohibition  of  harassment  or  sexual  harassment  into  national 
legislation has been and in some countries still is problematic. In France, a new definition of 
sexual  harassment  was  adopted  after  a  judgment  of  the  French  Constitutional  Court,  which 
considered the previous definition unconstitutional due to a lack of clarity.37 The definition is 
now very similar to the European one and the sanctions have been strengthened.38 The new 
law defines harassment as imposing on someone, in a repeated manner, words or actions that 
have a sexual connotation and either affect the person’s dignity because of their degrading or 
humiliating  nature  or  put  him  or  her  in  an  intimidating,  hostile  or  offensive  situation.  One 
single  act  can  also  give  rise  to  prosecution  where  someone  is  using  any  kind  of  serious 
pressure, with the real or visible goal of obtaining an act of a sexual nature.39 In 2008, Polish 
amendments  to  the  Labour  Code  significantly  improved  the  definitions  of  harassment  and 
sexual  harassment.  They  now  reflect  a  clear  distinction  between  sexual  harassment  and 
harassment based on sex. The definitions now refer to the effect of creating an intimidating, 
hostile,  degrading,  humiliating  or  offensive  environment.  The  relevant  provision  now  also 
explicitly  reflects the idea that  discrimination includes  less favourable treatment  based  on a 

36   See also I. Asscher-Vonk, ‘Instruction to discriminate’ European Gender Equality Law Review No. 1/2012, 
pp. 4-12, available at: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 
4 October 2013.  

37   CC 4 May 2012, QPC, No. 2012-240. 
38   Law 2012-954 of 6 August 2012. 
39   Article L.1153-1 of the French Labour Code and Article 222-33 of the French Criminal Code. 

10 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
                                                      
person’s  rejection  of  or  submission  to  harassment  or  sexual  harassment.  In  Romania,  the 
New Criminal Code entered into force on 1 February 2014, which sanctions acts of repeatedly 
demanding sexual favours in a labour or similar relationship, if the victim was intimidated or 
placed  in  a  humiliating  situation.40  While  expanding  the  personal  scope  of  the  criminal 
offence  of  sexual  harassment  to  labour  relations  between  colleagues,  irrespective  of 
hierarchical relations, this new definition no longer applies outside the framework of labour 
relations (for example sexual harassment carried out by a teacher or a doctor against a student 
or a patient).  

In Lithuania, sexual harassment is defined as unwanted insulting, verbal, non-verbal, or 
physical conduct of a sexual nature. The requirement that the conduct must be ‘insulting’ for 
it to constitute sexual harassment is not included in the EU definition, which rather stipulates 
the criterion of an ‘offensive’ environment. In Hungary, sexual harassment is not mentioned 
in the Equality Act as such, there is only a reference to harassment of a sexual or other nature 
in  the  definition  of  harassment.  The  prohibition  of  sexual  harassment  must  therefore  be 
further  developed  in  case  law.  In  Turkey,  no  difference  is  made  between  harassment  and 
sexual  harassment  and  no  legal  definition  of  sexual  harassment  exists.  In  Belgium,  an 
employee has to rely on legislation on health and safety at work and cannot invoke the Gender 
Act in case of presumed (sexual) harassment at work.  

4. Equal pay 

4.1. Equal pay 
As was already observed above, the principle of equal pay for men and women for equal work 
or work of equal value, today contained in Article 157 TFEU, has been entrenched ever since 
the  1957  Treaty.  In  order  to  facilitate  the  implementation  of  the  principle,  Directive 
75/117/EEC  was  adopted  in  1975  and  has  since  been  repealed  by  Recast  Directive 
2006/54/EC.  Indeed  both  direct  and  indirect  discrimination  in  pay  are  prohibited  and  the 
CJEU has answered many pre-judicial questions of national courts on this issue.  

The  introduction  of legal  principles  alone  does  not  eradicate  unequal  pay  between  men 
and women. Unfortunately, still today, the difference between the remuneration of male and 
female employees remains one of the great concerns in the area of gender equality: women in 
the  EU  earn  on  average  16.4 %41  less  than  men,  and  progress  has  been  slow  in  closing  the 
gender pay gap.42 The differences can be partly explained by other factors, such as traditions 
in the career choices of men and women; the fact that men, more often than women, are given 
overtime duties, with corresponding higher rates of pay; the gender imbalance in the sharing 
of family responsibilities; glass ceilings; part-time work, which is often highly feminised; job 
segregation etc. However, another part of the discrepancies cannot be explained except by the 
fact  that  there  is  pay  discrimination.  The  principle  of  equal  pay  aims  to  eradicate  this  pay 
discrimination.43 

One of the important issues in the area of equal pay is the very broad interpretation of the 
notion of ‘pay’ by the CJEU. Pay includes not only basic pay, but also, for example, overtime 
supplements,  special  bonuses  paid  by  the  employer,  travel  allowances,  compensation  for 
attending  training  courses  and  training  facilities,  termination  payments  in  case  of  dismissal 
and occupational pensions. In particular, the extension of Article 157 TFEU to occupational 
pensions has been very important (cf. Section 5). 

40   New Criminal Code, Article 223. 
41  Eurostat 2012. 
42   See for information on the gender pay gap for example the website of DG Justice at: 

http://ec.europa.eu/justice/gender-equality/gender-pay-gap/index_en.htm, accessed 16 September 2014. 
43   On legal aspects of the gender pay gap see: European Network of Legal Experts in the Field of Gender 

Equality, P. Foubert, S. Burri & A. Numhauser-Henning, The Gender Pay Gap from a Legal Perspective 
(including 33 country reports) European Commission, 2010, available at: : http://ec.europa.eu/justice/gender-
equality/document/index_en.htm#h2-9 and EU Bookshop https://bookshop.europa.eu/en/home/, accessed 16 
September 2014. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

11 

 
 
 
 
 
                                                      
Another important feature that should be highlighted is that the Recast Directive requires 
that  the  Member  States  ensure  that  provisions  in  collective  agreements,  wage  scales,  wage 
agreements and individual employment contracts which are contrary to the principle of equal 
pay shall be or may be declared null and void or may be amended (Article 23). Moreover, it 
provides that where job classification schemes are used in order to determine pay, these must 
be based on the same criteria for both men and women and should be drawn up to exclude 
discrimination on the grounds of sex (Article 4). 

The principle of equal pay under EU law is, in general, reflected in the legislation of the 
Member  States  and  the  EEA  countries.  This  is  often  the  case  at  both  Constitutional  and 
legislative  level,  either  as  a  part  of  general  labour  law  or  as  provided  for  in  specific  anti-
discrimination legislation. Both direct and indirect discrimination are explicitly covered and 
the requirement of ‘equal pay for similar work or work of equal value’ is also often covered. 
However in Latvia, judges and prosecutors cannot rely on gender equality provisions of the 
Labour  Law,  and  the  laws  regulating  the  service  of  judges  and  prosecutors  do  not  contain 
anti-discrimination provisions. These groups can rely on EU norms if they are applicable, and 
they  can  also  rely  on,  for  example,  the  non-discrimination  provisions  of  the  Latvian 
Constitution. 

4.2. What is ‘pay’ and what is ‘equal value’? 
Like  at  the  EU  level,  in  most  countries  pay  is  interpreted  very  broadly,  not  only  covering 
salaries as such, but also including various fringe benefits. In other words, pay may include 
remuneration  proper,  in  cash  or  in  kind,  but  also  various  bonuses,  tips,  accommodation, 
marriage  gratuities,  redundancy  and  sickness  payments,  as  well  as  overtime  payments  and 
other  fringe  benefits.  An  exception  is Portugal  where  the  national  concept of remuneration 
seems to be narrower than that under EU law.  

In  Belgium, the  2007  Act does  not  mention  work  of the same  value.  In  Germany,  the 
General  Act  on  Equal  Treatment  contains  a  general  prohibition  of  discrimination,  but  no 
entitlement to equal pay or concepts of pay and work of equal value are defined in statutory 
legislation.  Specific  mechanisms  to  tackle  the  gender  pay  gap  are  lacking  in  this  country, 
where  the  gap  amounts  to  23 %.44  Collective  agreements  are  still  a  major  cause  of  this 
considerable  gap.  No  criteria  are  provided  in  Greece  either  and  the  traditional,  non-
transparent  job  classification  schemes  are  still  widely  applied  with  a  considerable  risk  of 
indirect sex discrimination. 

Some countries, e.g. the Czech Republic, Hungary and Slovakia, have laid down some 
parameters for establishing the equal value of the work performed. For instance, the following 
criteria should be taken into account: the complexity of the work, the responsibility required, 
the strenuousness of the work, including both physical and psychological strain, the working 
conditions  under  which  the  job  is  performed,  efficiency,  experience,  the  required  skills  and 
qualifications,  comparable  work  results  etc.  By  contrast,  some  other  countries  do  not  have 
such comparable provisions in their legislation (e.g. Latvia, Malta and Slovenia).  

4.3. Role for collective agreements and for employers 
An  important  instrument  for  the  realisation  of  the  equal  pay  principle  is  the  review  of  pay 
scales and job evaluation schemes. However, such schemes have not been scrutinised in depth 
in  all  countries  concerned.  Further,  while  in  many  instances  direct  discrimination  has  been 
significantly  reduced.  It  is  far  from  certain  whether  the  job  evaluation  and  classification 
schemes applied are really sex-neutral, since indirect discriminatory features are less easy to 

44   According to the German Office for Statistics (Statistisches Bundesamt): 

https://www.destatis.de/DE/ZahlenFakten/GesamtwirtschaftUmwelt/VerdiensteArbeitskosten/VerdiensteVerdi
enstunterschiede/Tabellen/GenderPayGap_EU.html, accessed 30 January 2015. See also: Statsitisches 
Bundesamt, Nachhaltige Entwicklung in Deutschland. Indikatorenbericht 2012, and 
https://www.destatis.de/DE/Publikationen/Thematisch/UmweltoekonomischeGesamtrechnungen/Umweltindik
atoren/IndikatorenPDF_0230001.pdf?__blob=publicationFile. At pp. 58-59, accessed 8 January 2015.  

12 

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detect  and  deal  with.  Moreover,  there  is  the  particular  problem  that  work  which  is  mainly 
performed by women is still in many cases intrinsically considered to be of lower value.45  

Such  problems  exist,  for  instance,  in  Norway,  where  there  is  a  highly  segregated 
employment  market.  The  pay  differences  there  are  often  justified  by  ‘market  value’ 
arguments and ‘historical differences’. Other justifications for pay differences that are often 
put  forward  in  many  countries  and  which  are  also  generally  accepted  are  differences  in 
education,  the  scarcity  of  labour,  seniority,  the  quality  of  the  work,  and  efficiency.  Indeed, 
they are part and parcel of the criteria used for the establishment of ‘equal value’. However, it 
is important to scrutinise such criteria for their potentially indirectly discriminatory effects. In 
Poland,  many  private  enterprises  have  no  job  classification  schemes.  However,  since  2011 
legislation is applicable to the public sector, which regulates job evaluations and defines the 
procedures to be followed. 

In  order  to  assist  the  review  of  pay  scales  and  job  evaluation  schemes,  often  new  and 
more objective criteria are needed. In some Member States there are rules, guidelines or other 
tools which provide criteria for a neutral assessment of the value of the work. In Belgium, the 
joint  sector  committees  must  revise  their  job  classification  schemes  to  ensure  that  they  are 
gender neutral. More efficient and gender-neutral job evaluations may also be developed by 
the companies themselves, if their works councils so decide. In some countries, investigations 
into the (indirectly) discriminatory nature of job evaluation schemes can also be performed by 
equality  bodies  or  labour  inspectorates.  In  the  Netherlands,  the  Equality  Body  is  active  in 
developing methods for assessment of equal pay practices. In Slovenia, companies with more 
than 10 employees must adopt an internal document on job classification. 

In most Member States, collective agreements are an important instrument for achieving 
equal  pay.  As  a  rule  they  contain  provisions  on  pay  as  such  (they  may  even  contain  pay 
scales)  and  they  often  combine  this  with  the  issue  of  equal  pay  for  men  and  women. 
Alternatively,  pay  equality  is  considered  to  be  included  in  the  more  general  provisions  on 
gender equality in the collective agreement in question. The problem that may arise, however, 
is  that  pay  systems  consist  of  several  different  parts  of  remuneration.  Often,  collective 
agreements  lay  down  the  minimum  or  a  basic  salary  only.  The  remainder  of  the  pay 
component is negotiated on an individual basis or is a matter which is left to an assessment by 
the employer, an assessment which may be rather discretionary. In particular in this respect 
there is little transparency and in the majority of the countries concerned individual income is 
considered to be confidential. This makes it difficult to detect whether discrimination occurs. 
In  order  to  ensure  transparency  and  effective  review,  CJEU  case  law  requires  that  the 
application  of  the  principle  of  equal  pay  must  be  ensured  in  respect  of  each  element  of 
remuneration and not only on the basis of a comprehensive assessment of the consideration 
paid to workers.46 

Since collective agreements are so important, in some countries explicit obligations are 
imposed  on  the  social  partners,  with  the  minimum  requirement  that  collective  agreements 
must include provisions on equal pay. However, the obligations may also go further than this. 
In France, for instance, legislation states that compulsory bargaining, which must take place 
in enterprises every year on the subject of remuneration, must also include a chapter dealing 
with equality. As part of this obligation, the social partners must establish an instrument on 
how  to  measure  equality  in  pay  and  then  report  on  the  progress  on  a  yearly  basis. The  law 
specifies  that  remuneration  includes  wages,  but  also  other  advantages,  in  cash  or  in  kind. 
Various  provisions  should  ensure  that  this  negotiation  really  takes  place  and  sanctions  are 

45   See on this issue: European Commission,  Report on the application of Directive 2006/54/EC of the European 
Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and 
equal treatment of men and women in matters of employment and occupation (recast), COM (2013) 861, 
available at: http://ec.europa.eu/justice/gender-equality/files/gender_pay_gap/com-2013-861-final_en.pdf, 
accessed 16 September 2014. 

46   Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889 

(Barber). 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

13 

 
 
 
 
                                                      
prescribed  when  enterprises  employing  at  least  50  employees  have  not  concluded  any 
agreement on sex equality.47 

In  other  countries,  obligations  are  rather  imposed  on  employers.  In  some  countries,  for 
example Cyprus, private employers have the obligation to provide information to employees 
and  trade  unions  on  equal  pay  issues  and  measures  to  tackle  the  gender  pay  gap.  In  some 
countries, employers may  be obliged to monitor pay  practices in the workplace and present 
regular surveys, analyses and periodical plans of action for equal pay (e.g. Sweden). It would 
seem  that  in  particular  obligations  to  prepare  pay  structure  surveys  or  to  produce  gender-
specific  wage  statistics  for  the  enterprise  are  believed  to  be  useful  to  discover  any  pay 
discrimination and are (therefore) obligatory. This is for instance the practice in France. In 
other  States,  there  are  no  obligations  as  such,  but  equal  pay  reviews  are  carried  out  on  a 
voluntary basis. The incentive for this is for example the label of ‘good practice employer’. 

4.4. Enforcing equal pay 
Finally,  effective  enforcement  of  the  relevant  equal  pay  legislation  in  the  courts  is  also  of 
great  importance.  Unfortunately,  only  a  few  cases  on  equal  pay  are  brought  to  the  courts 
every year (and some additional cases to the competent equality bodies). A specific reason for 
this low level of litigation may be that the alleged victim must often look for a comparator in 
order to claim discrimination. The comparison is, in principle, restricted to the workplace or 
company  where  the  individual  works  or  where  the  same  collective  agreement  applies.  A 
comparison  across  sectors  and  businesses  with  different  collective  agreements  is,  as  a  rule, 
not permitted. According to the CJEU, it must be possible to attribute differences in the pay 
conditions  of  workers  of  different  sex  performing  equal  work  or  work  of  equal  value  to  a 
single source, as otherwise there is no body which is responsible for the inequality and which 
could restore equal treatment.48  

It  seems  that  the  judiciary  in  Croatia  overemphasises  the  importance  of  a  comparator, 
when  for  example  a  formal  difference  in  a  job  classification  scheme  might  exclude 
comparability. A similar problem exists in Greece. Irish law is very prescriptive and requires 
an  actual  comparator.  In  the  United  Kingdom,  the  legislation  defines  an  appropriate 
‘comparator’ for these purposes as a person of the opposite sex who is employed by the same 
employer  in  the  same  establishment,  or  one  at  which  broadly  similar  terms  and  conditions 
apply, for ‘like work’, ‘work rated as equivalent’ (e.g. by a job evaluation scheme drawn up 
by the employer) or ‘work of equal value’.49 The possibility of a hypothetical comparator in 
equal pay cases was introduced for the first time by the Equality Act 2010, though it applies 
only where direct discrimination is alleged.  

Another  major  problem  is  proving  pay  discrimination  as  the  necessary  information  is  of  an 
individual  and  confidential  nature  and  is  not  easily  accessible,  or  is  not  at  all  available.50 
Thus, for instance, in Finland, Poland and Romania, it is very difficult to compare ‘work of 
equal value’, as information about other jobs (in particular in strongly sex-segregated labour 

47  See also S. Laulom ‘Gender Pay Gap in France’, European Gender Equality Law Review no. 1/2009, pp. 5-15, 
available at http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 4 October 
2013. 

48   Case C-320/00, A. G. Lawrence and Others v Regent Office Care Ltd, Commercial Catering Group and Mitie 

Secure Services Ltd., [2002] ECR I-7325 (Lawrence). 

49   The Supreme Court ruled in a recent case that, where claimants seek to rely on comparators employed at a 

different establishment, the legislation does not require there to be a ‘real possibility’ of the comparators doing 
the same, or broadly similar, jobs at the claimant’s place of work, North & Ors v Dumfries and Galloway 
Council [2013] IRLR 737, discussed in the European Gender Equality Law Review No. 2, 2013, p. 109 
available at http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 25 September  
2014. 

50    On 7 March 2014 the Commission adopted Recommendation on strengthening the principle of equal pay 

between men and women through transparency (C(2014) 1405 final). The Recommendation provides a tool-
box of concrete measures designed to assist Member States in taking a tailor-made approach to improving pay 
transparency. 

14 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
                                                      
markets)  is  not  easily  accessible  for  employees.  However,  in  Finland  these  difficulties  are 
partly tackled by the requirement of the Equality Act that larger employers have to provide an 
assessment of pay differentials as a part of their mandatory equality plan. In Estonia, case law 
exists  on  the  collection  and  disclosure  of  information  concerning  wages.  In  2009,  the 
Supreme  Court  considered  that  data  on  pay  in  the  public  sector  should  be  accessible,  but 
Estonian law does not require the disclosure of salaries of individuals.51 In Iceland, workers 
now  have  the  right  at  all  times  to  voluntarily  disclose  their  wages.  It  might  however  be 
doubted whether such right is useful for employees who presume they are paid less than their 
colleagues,  as  they  depend  on  their  colleagues  for  wage  information.  It  might  therefore  be 
doubted whether voluntary disclosure of wage information will often happen in practice. 

5. Occupational pension schemes 

As  observed  above,  the  CJEU  has  made  clear  in  its  case  law  –  in  particular  in  the  famous 
Barber  judgment52  –  that  occupational  pension  schemes  are  to  be  considered  as  pay  and 
therefore the principle of equal treatment applies to these schemes as well. According to the 
CJEU, and in contrast to the so-called statutory schemes, to be discussed in Section 8, Article 
157 TFEU applies to schemes which are: 

i) 

the  result  of  either  an  agreement  between  workers  and  employers  or  of  a  unilateral 
decision of the employer; 

ii)  wholly financed by the employer or by both the employer and the workers; and 
iii)  where affiliation to those schemes derives from the employment relationship with a given 

employer.  

The  most  important  consequence  of  this  case  law  was  that  certain  aspects  of  Occupational 
Social  Security  Schemes  Directive  86/378/EEC,  which  was  adopted  in  the  meantime,  were 
contrary  to  Article  157  TFEU  and  had  to  be  amended.  53  The  most  salient  forms  of 
discrimination  in  this  Directive  were  the  retention  of  different  pensionable  ages  for  women 
and men and the exclusion of survivor’s benefits for widowers.54 In the light of the CJEU’s 
case law, these forms of discrimination were no longer allowed. Similarly, in relation to the 
use  of  gender-segregated  and  different  actuarial  factors  –  in  particular  the  different  life 
expectancy  of  women  and  men  (i.e.  the  fact that  on  average  women  live  longer which  also 
means that they need old-age pensions for a longer period of time) – the CJEU ‘corrected’ the 
Occupational  Social  Security  Schemes  Directive  to  a  certain  extent.  The  provisions  on 
occupational  social  security  schemes  are  now  included  in  Chapter  2  of  Recast  Directive 
2006/54/EC,  which  codifies  relevant  case  law  on  this  issue.  The  case  law  on  occupational 
pensions  had  a  considerable  impact  on  equal  treatment  in  occupational  pension  schemes  in 
those  Member  States  where  it  was  previously  believed  that  Article  157  TFEU  was  not 
applicable and certain forms of discrimination were still allowed. 

5.1. Uncertainty about the nature of national schemes 
Apart from the problem that in some countries it was initially believed that Article 157 TFEU 
did not apply to their national schemes, another source of confusion was – and sometimes still 
is – the distinction between occupational schemes and statutory schemes. In some countries 

51   Judgment No. 3-4-1-1-09 of the Constitutional Review Chamber of the Supreme Court of 19 May 2009. 

RT III, 2009, 27, 199. Available http://www.nc.ee/?id=1036, accessed 15 January 2014. 

52   Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889. 
53   Directive 86/378/EEC was amended by Directive 96/97/EC, and has now been repealed by Recast Directive 

2006/54/EC. 

54   Strictly speaking, there is, under CJEU case law, a difference between the retirement age in the sense of the 
age at which women or men have to leave their employment, which must be equal, and the age at which 
women and men qualify for their old-age and related pensions. In certain schemes this difference can be 
retained, see Section 8 on Statutory Schemes of Social Security. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

15 

 
 
 
 
 
                                                      
the  characteristics  of  the  national  social  security  system  do  not  correspond  with  a  concept 
such as ‘occupational pension schemes’. This led the respective governments to believe that it 
was  not  necessary  to  transpose  the  EU  provisions  on  occupational  social  security  schemes, 
even  after  the  amendments  to  the  initial  directive  by  Directive  96/97/EC.  Illustrative  of  the 
problems  that  occur  is,  for  instance,  the  situation  in  Greece,  where  the  concept  of 
occupational  pension  schemes  is  virtually  unknown.  Therefore,  it  is  unclear  which  Greek 
social security schemes fall under this concept and which do not. However, the CJEU found 
that the Greek civil and military pensions’ scheme, laid down in a code, was to be considered 
as  an  occupational  pension  for  the  purposes  of  EU  gender  equality  law.  Therefore,  the 
provisions of the code that differentiated between male and female workers with regard to the 
pensionable age and the minimum length of service infringed the principle of equal treatment. 
Moreover,  the  Court  made  it  clear  that  such  differences  cannot  be  justified  as  a  form  of 
positive  action:  the  measures  at  stake  cannot  be  considered  as  measures  that  contribute  to 
helping  women  conduct  their  professional  life  on  an  equal  footing  with  men.55  The  crucial 
question in this case was whether the Greek scheme had to be considered as a statutory one, 
since  in  that  case  a  long  list  of  exceptions,  including  differences  in  pensionable  age,  are 
applicable. The Court decided otherwise. The transposing national Act currently still fails to 
specify which Greek schemes are occupational and includes no criteria to determine this, and 
therefore lacks transparency. The pensionable age of men and women in Greece is now equal 
and has been raised to 67, with effect from 1 January 2013. The higher pensionable age for 
women  has  been  increased  with  a  very  short  or  no  transitional  period,  while  the  basis  for 
calculating the pension has been extended to the whole working life. This may well result in 
pensions  for  many  women  being  lower  than  before  or  wholly  impossible,  due  to  career 
interruptions  and  a  much  higher  unemployment  rate  of  women  than  men.  Moreover,  since 
2010, pension cuts are sharper for pensioners under 55 years of age; they have a strong gender 
dimension, as an ILO Mission to Greece underlined, as most affected pensioners are mothers 
of minor children who in the past were entitled to an earlier pension.56    

However,  Greece  is  not  the  only  country  encountering  problems  in  this  field.  The 
distinction  between  statutory  and  occupational  schemes  is  (and  was)  problematic  for  some 
other Member States, such as Denmark, Finland, France,57 and Italy58. Moreover, some of 
the ‘new’ Member States or candidate countries, in particular the post-communist states, had 
restructured their social security system in accordance with the so-called ‘World Bank Model’ 
(e.g.  Bulgaria  and  the  former  Yugoslav  Republic  of  Macedonia).  This  model  does  not 
follow  a  three-pillar  structure  like  the  one  used  in  the  EU  framework  (i.e.  statutory, 
occupational  and  private  schemes).  Instead,  the  World  Bank  Model  follows  the  distinction 
between  state  schemes,  mandatory  savings  schemes  and  voluntary  schemes.  It  would  seem 
that  it  is  less  obvious  how  to  apply  the  EU  criteria  for  occupational  schemes  to  the  latter 
model. Furthermore, there may also be other reasons why the national social security structure 
just does not fit within the EU division, as was the case in the Czech Republic. Despite this, 
in its judgment of December 2008, the CJEU declared that the Czech Republic had failed to 
adopt (all) the laws, regulations and administrative provisions necessary to comply with the 
relevant directives on equal treatment in occupational pension schemes.59 Now, all exceptions 
allowed  in  the  Recast  Directive  have  been  copied  into  the  Czech  Anti-Discrimination  Act, 
thus providing a formal rather than a substantive transposition of the relevant provisions. 

55   Case C-559/07 Commission of the European Communities v Hellenic Republic [2009] ECR I-47 (summary). 

See also Case C-46/07 Commission of the European Communities v Italy [2008] ECR I-151. 
56   ΙLO, Report on the High Level Mission to Greece (Athens, 19-23 September 2011), para. 321:  

http://www.ilo.org/global/standards/WCMS_170433/lang--en/index.htm, accessed 28 May 2014. 

57   Following the Griesmar case, multiple pension reforms had and still have to be carried out in particular in 
relation to family benefits for women only: C-366/99, Joseph Griesmar v Ministre de l'Economie, des 
Finances et de l'Industrie and Ministre de la Fonction publique, de la Réforme de l'Etat et de la 
Décentralisation [2001] ECR I-9383. 

58   Where the pensionable age of men and women still differs at present and until 2018. 
59   Case C-41/08 Commission of the European Communities v Czech Republic [2008] ECR I-175. 

16 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
                                                      
Different conditions applied in relation to access to occupational pension schemes might 
be  indirectly  discriminatory,  for  example  the  requirement  of  a  large  number  of  years  of 
continuous employment (e.g. Germany), the application of a minimum threshold of working 
hours (e.g. Ireland60 and Norway61) or a minimum period of employment at an actual work 
place  (e.g.  Poland).  In  Hungary, the  employer  can  limit  access to an  occupational pension 
scheme to a selected group of employees, often those in managerial and key functions. Some 
forms  of  indirect  sex  discrimination  were  not  considered  to  be  unlawful  by  national  courts 
(e.g. Germany62) or have not yet been decided on by courts (e.g. Hungary).63 

In some countries, occupational pension schemes are scarce (e.g. Latvia, Lithuania and 

Portugal). 

The  use  of  gender-related  actuarial  factors  is,  within  certain  limits,  still  allowed  under  the 
Recast  Directive  ((see  Article  9(1)  (h)  and  (j)).  The  limited  use  of  gender-related  actuarial 
factors  in  occupational  pension  schemes  is  not  prohibited  in,  for  instance,  Belgium,  the 
Czech Republic, Italy, Luxembourg, the Netherlands, Norway and Slovenia.64 The use of 
unisex actuarial data – i.e. using the same average life expectancy for purposes of the old-age 
pension for both sexes – is common in for example Denmark65 and Sweden.  

6. Access to work and working conditions 

In addition to pay, EU gender equality law also covers employment, in particular the access to 
employment, promotion in employment, access to vocational training and working conditions 
including  conditions  governing  dismissal  (see  in  particular  Chapter  3  of  Recast  Directive 
2006/54/EC).  

The transposition in this area has generally taken the form of a general gender equality 
act  and,  very  often,  amendments  to  labour  law  legislation  or  legislation  concerning  civil 
servants.  Sometimes  remarkable  degrees  of  friction  may  occur  in  this  process,  like  in 
Germany.  In  that  country  discriminatory  dismissal  is  not  explicitly  covered  by the  General 
Act on Equal Treatment, the most important piece of gender equality legislation. Meanwhile 
the Federal Labour Court has clarified that dismissal is covered by the General Act on Equal 
Treatment.66  General  labour  law  applies  to  dismissals.  One  of  the  common  grounds  for 
dismissal in case of economic difficulty is the length of employment. As women often have a 
shorter  working  record,  there  is  a  risk  of  indirect  discrimination.  In  Belgium,  the  federal 
structure,  in  particular  the  exclusive  jurisdiction  of  the  federate  authorities  regarding  some 
issues (e.g. vocational orientation and training), causes confusion. In Denmark, the extension 
of  equal  treatment  to  membership  of  and  involvement  in  trade  unions  and  employers’ 
organisations, as EU gender equality law prescribes, took place at almost the same time as the 
merger  of  the  Women  Workers’  Union  (for  other  reasons)  with  the  predominantly  male 

60   Protection of Employees (Part-Time Work) Act 2001. 
61   The requirement of a minimum of 14 hours weekly in a collective agreement for access to an additional 
pension system was recently considered unlawful by a Labour Court: 21 June 2013, Case No. 20/2013.  
62   See for example  Federal Labour Court, judgment of 20 April 2010, 3 AZR 370/08; Federal Labour Court, 

judgment of 12 February 2013, 3 AZR 100/11; and Federal Labour Court, judgment of 9 October 2012, 3 AZR 
477/10. 

63   See further: European Network of Legal Experts in the Field of Gender Equality, S. Renga, D. Molnar-Hidassy 
& G. Tisheva, Direct and Indirect Gender Discrimination in Old-Age Pensions in 33 European Countries, 
European Commission 2010, available at: http://ec.europa.eu/justice/gender-equality/files/conference_
sept_2011/dgjustice_oldagepensionspublication3march2011_en.pdf, accessed 4 October 2013. 

64   See on the use of actuarial values the staff case of an official of the Council of the European Union, a case in 
which the validity of the exceptions in Article 9(1)(i) and (j) were called into question: Case C-227/04 P 
Maria-Luise Lindorfer v Council of the European Union staff cases 2007 II-B-2-00157 and I-06767;FP-I-B-2-
00017.  

65   The use of gender-related actuarial factors has been prohibited since 1998, but this legislation only applies to 

workers who joined the scheme after 1 July 1999. 

66   Since Federal Labour Court, judgment of 6 November 2008, 2 AZR 523/07.  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

17 

 
 
 
 
 
 
                                                      
General Workers’ Union so that the question whether or not it was lawful to have a women-
only trade union became irrelevant. 

In respect of all the aspects listed above, direct and indirect discrimination are prohibited 
(Article  14).  Some  job  requirements  might  be  indirectly  discriminatory  for  women,  for 
example minimum height requirements (1.70 m.) for access to police academies in Greece. In 
some  countries,  legislation  provides  specific  protection  against  direct  or  indirect  sex 
discrimination  in  the  access  to employment.  Slovenian  law for example  explicitly  prohibits 
an  employer  from  requiring  information  from  an  applicant  on  his/her  family  and/or  marital 
status,  pregnancy  and  family  planning.  Sometimes,  direct  discrimination  might  be  justified 
under EU law, as a number of exceptions to the principle of equal treatment are allowed.  

6.1. Exceptions  
The  general  scheme  of  gender  equality  law,  at  least  as  laid  down  in  the  directives,  is  that 
direct  discrimination  can  in  principle  only  be  justified  on  the  basis  of  the  exceptions  laid 
down  in  the  directives  themselves.  This  is  an  important  difference  from  indirect 
discrimination, which might be justified for a broader range of reasons (see above, Section 3). 
One of the most important exceptions concerns occupational activities for which the sex 
of  the  worker  is  a  genuine  and  determining  occupational  requirement  (Article  14(2)). 
Because this is an exception to a fundamental principle it has to be interpreted strictly. Thus 
the  derogation  is  further  tightened  by  the  requirement  that  it  must  be  appropriate  and 
necessary for achieving the legitimate aim pursued. These requirements resulted, for instance, 
in  the  general  exclusion  of  women  from  the  Royal  Marines  (the  British  Royal  Navy’s 
amphibious  infantry  requiring  a  high  level  of  physical  strength  and  fitness)  or  from  the 
German  army  (Bundeswehr),  this  exclusion  not  being  accepted  by  the  CJEU.67  Only  the 
specific  nature  of  the  posts  in  question  or  the  particular  context  in  which  the  activities  in 
question are carried out may justify an exception. 

EU  law  allows  provisions  concerning  the  protection of  women,  particularly  as regards 
pregnancy  and  maternity  (Article  28(1)).  In  the  past,  the  existing  protective  legislation  in 
some Member States concerned issues like restrictions on night work or on certain dangerous 
or  strenuous  work,  such  as  mining,  ground  excavation,  work  in  hyperbaric  chambers,  the 
lifting of heavy materials etc. In some countries, this protective legislation excluded women 
during pregnancy for this kind of work, or the legislation was clearly linked to maternity or 
parenthood.  In  other  countries,  the  exclusion  was  more  general,  like  in  relation  to  the 
prohibition of night work. Interestingly, while a great volume of protective legislation existed 
in  the  former  Central  and  Eastern  European  countries,  by  contrast  there  was  very  limited 
protective  legislation  in  the  Scandinavian  countries.  In  particular  in  Denmark,  there  has 
always  been  a  strong  tradition  of  not  accepting  protective  measures  for  women.  The 
difference  between  the  countries  in  this  respect  can  be  explained  by  sociological  and/or 
historical reasons. 

Some of these protective provisions have been scrutinised as to their compatibility with 
EU law and have been abolished, sometimes after the intervention of the CJEU.68 In France, 
for instance, the prohibition of night work for women was not abolished until 2001.  

The CJEU has made it clear that protective legislation is only allowed to meet women's 
specific  need  for  protection  related  to  pregnancy  and  childbirth  and  it  cannot  be  used  to 
exclude women from a certain type of employment solely on the ground that they ought to be 
given  greater  protection  than  men  against  risks  which  affect  men  and  women  in  the  same 
way.69  This  does  not  mean  that  all  forms  of  protective  measures  are  no  longer  allowed. 

67   Case C-273/97 Angela Maria Sirdar v The Army Board and Secretary of State for Defence [1999] ECR 

I-07403 (Sirdar) and Case C-285/98 Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-69 (Kreil). 
68   E.g. on night work Case C-158/91 Criminal proceedings against Jean-Claude Levy [1993] ECR I-04287, 

(Levy). 

69   Case C-222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR I-01651 
(Johnston); Case C-285/98 Tanja Kreil v Bundesrepublik Deutschland [2000] ECR I-00069 (Kreil); Case 
C-203/03 Commission of the European Communities v Republic of Austria [2005] ECR I-00935. 

18 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
                                                      
However,  under  the  current  EU  gender  equality  law,  they  must  fit  under  the  ‘sex  of  the 
worker  as  a  determining  factor  exception’  concerning  occupational  requirements,  under  the 
exception on the ‘protection of women, in particular in relation to pregnancy and maternity’ 
or under the provisions of the Pregnant Workers Directive, as discussed in Section 7. 

6.2 Occupational requirements 
The transposition of the exception where the sex of the worker is a determining factor for the 
activity at stake basically takes two different forms: either the national transposing legislation 
contains  a  'general'  exception  setting  out  abstract  criteria  of  general  application  across  the 
employment  field  for  cases  where  the  sex  of  the  worker  is  a  determining  factor  for  an 
occupational activity, or a specific list, identifying particular occupational activities where the 
sex of the worker is a determining factor. Obviously, a combination of both exists as well. In 
Greece, the Acts transposing the relevant directives in this field contain no exception at all. 

The  usual  activities  listed  concern  singers,  actors,  fashion  or  photographic  models, 
military personnel (usually certain units in the armed forces, such as service on submarines in 
the  French  navy  or  some  specific  police  forces),  private  security  bodies  (e.g.  Cyprus), 
wardens  in  women’s  shelters,  personal  care  involving  physical  contact,  membership  of 
religious orders or access to the priesthood. Sometimes the reservation appears to be based on 
the nature of the job, sometimes it is determined by the context in which the specific activity 
takes place. In some cases, however, an exception may seem to be specific, but in fact it may 
turn out to be rather wide. Some generally formulated exceptions, for instance in the Czech 
Republic, give rise to concerns because the formulation is rather open, not very transparent 
and  does  not  easily  lend  itself  to  appraisal.  In  Turkey,  until  October  2013,  both  male  and 
female  civil  servants  had  to  work  bare-headed,  a  requirement  which  impaired  access  to 
employment  in  particular  of  women  wearing  a  headscarf  and  which  might  be  indirectly 
discriminatory.70  In  Hungary,  the  exceptions  are  broader  than  allowed  under  the  Recast 
Directive, in particular when a job requiring some physical work is not open for women. The 
same  is  true  for  the  exceptions  concerning  all  activities  carried  out  within  religious 
denominations and private life. The exceptions in Cyprus concerning prison guards and home 
care of old or disabled persons might be questioned as well. Religious considerations are one 
of  the  continually  recurring  grounds  for  derogation  in  many  countries  (e.g.  the  United 
Kingdom).71  Legislation  in  Finland,  for  example,  also  excludes  the  religious  practices  of 
religious communities. However, the Evangelical Lutheran Church of Finland has opened its 
ministerial  offices  to  women  and  recent  case  law  confirms  that  equal  treatment  has  to  be 
applied in church offices and other church jobs, even when they involve religious practices. 
This  does  not,  however,  apply  to  the  religious  practices  of  other  religious  communities. 
Where  such requirements often  hinder the  access  to employment  of  women,  positive  action 
measures in contrast are meant to facilitate such access. 

6.3. Positive action once again 
In  some  countries,  positive  action  is  also  considered  to  be  an  exception  to  the  principle  of 
equal  treatment.  However,  other  countries  understand  positive  action  as  an  instrument  to 
achieve  real  equality  in  everyday  life.  As  was  pointed  out  in  Section  3.4,  Greece  and 
Portugal qualify positive action measures as a means to achieve equality, not as an exception, 

70   Following the democratisation package of 30 September 2013, the quite detailed By-Law on the Garments of 
Public Personnel (Kamu Kurum ve Kuruluşlarında Çalışan Personelin Kılık ve Kıyafetine Dair Yönetmelik, 
Official Gazette, 25 October 1982, No. 17849), issued by the military Government following the 12 September 
1980 military takeover, was amended on 8 October 2013 (Official Gazette, 8 October 2013, No. 28789). 
Following this amendment, women with headscarves may hold public offices. Those who have to wear formal 
suits (uniforms), military personnel, police, judges and prosecutors are excluded. For the excluded public 
services, the issue is left to the discretion of the relevant organisations, as the headscarf ban is a result of their 
own internal regulations/practices.  

71   For example for teachers teaching religion in schools based on a certain religious ethos. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

19 

 
 
 
                                                      
in their Constitution and in some States positive action measures are framed as an obligation, 
in particular in the public sector and for company boards. 

Positive  action  is  often  conditional,  i.e.  it  is  only  allowed  on  certain  conditions.  For 
instance  in  the  Dutch  Equal  Treatment  Act  the  following  conditions  apply:  (a)  a  positive 
measure  must  be  aimed  at  diminishing  or  cancelling  disadvantages  for  women,  (b)  the 
disadvantages  must  be  linked  to  sex,  and  (c) the  measure  must  be  proportionate  to  the  aim. 
There is no obligation or requirement to introduce and effectuate positive action programmes. 
Also in other countries, like for instance Portugal, the temporary basis is very important. In 
Belgium, the Gender Act of 2007 imposes strict conditions. Due to the fact that an ancillary 
Royal  Decree  needed  for  the  implementation  of  this  legal  provision  has  not  yet  been 
promulgated, there is uncertainty about the lawfulness of some positive actions. 

In Malta free – that is, government funded – child care for all has been introduced, and 
this will clearly benefit women most since they have traditionally forgone working when the 
family finances did not run to paying for childcare.  

7.  Pregnancy  and  maternity  protection;  maternity,  paternity,  parental  and  adoption 
leave 

Another  important  exception  to  the  principle  of  equal  treatment  or,  arguably,  necessary 
differentiation, concerns the protection of women as regards pregnancy and maternity. 

7.1. Pregnancy and maternity 
Discrimination for reasons of pregnancy is to be considered as direct discrimination under EU 
law and therefore also in the Member States. Similarly, disorders and complications related to 
pregnancy,  which  may  result  in  incapacity  to  work,  form  part  of  the  risks  inherent  in 
pregnancy and less favourable treatment on that ground, or perhaps even dismissal, amount to 
direct  discrimination  as  well.  Finally,  any  less  favourable  treatment  of  a  woman  related  to 
pregnancy or maternity leave is included in the prohibition of discrimination (Article 2(2)(c) 
of the Recast Directive 2006/54/EC). 

At  the  same  time,  protection  for  reasons  of  pregnancy  and  maternity  justifies  different 
treatment  for  those  women  concerned.  Thus,  special  rights,  related  to  pregnancy  and 
maternity,  such  as  maternity  leave,  do  not  amount  to  discrimination  against  men  (Directive 
92/85/EEC and Article 28 of the Recast Directive). While such rights have been seen in the 
past as an exception to the principle of equal treatment, nowadays they are rather considered 
as  a  means  to  ensure  the  implementation  of  the  principle  of  equal  treatment  for  men  and 
women  regarding  both  access  to  employment  and  working  conditions.  In  fact,  they  aim  to 
accommodate the main biological difference between women and men. However, it might be 
questioned how far protective measures should go, in particular in view of a more balanced 
division of work and family life between men and women when a very long maternity leave 
and/or many protective measures exist (e.g. Bulgaria, Hungary72). It is submitted that a very 
long  maternity  leave  might  hamper  a  balanced  division  of  family  responsibilities  and 
possibilities on the labour market. A combination of a maternity leave that is not excessively 
long, paternity leave,  parental leave, and child care leave might prevent such drawbacks. 

In order to strengthen the protection of pregnant women and women who have recently given 
birth, the Pregnant Workers Directive 92/85/EEC was adopted in 1992. The most important 
provisions  thereof  concern  a  period  of  maternity  leave  of  at  least  14  weeks  (Article  8). 
Women are entitled to the payment of an adequate allowance during pregnancy and maternity 
leave (Article 11). This allowance is deemed to be adequate if it guarantees an income at least 
equivalent to that which the worker concerned would receive in case of illness (Article 11(3)). 
Another important provision relates to protection against dismissal from the beginning of the 

72   In Hungary, the three-years long parental leave was kept. However the related legal protection of parents was 

reduced considerably in the new Labour Code which came into force in 2012. 

20 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
                                                      
pregnancy until the end of the maternity leave (Article 10). Apart from leave and employment 
protection, the Directive also provides for health and safety protection for pregnant women or 
women  who  are  breastfeeding.  If  there  is  a  risk  to  health  and  safety  or  an  effect  on  the 
pregnancy  or  breastfeeding,  as  established  on the  basis  of  detailed  guidelines,  the  employer 
must take the necessary steps, like temporarily adjusting the working conditions, moving the 
worker to another job or, if there is no other solution, granting the worker temporary leave. 
Under a pending proposal, aimed at amending the Pregnant Workers Directive, the minimum 
maternity  leave  would  be  18  weeks.  The  European  Parliament  has  proposed  a  fully-paid 
maternity leave of at least 20 weeks (and a fully paid paternity leave of two weeks). It seems 
unlikely  that  this  proposal  will  be  adopted  in  the  short  term;  the  last  debate  in  the  Council 
dates from December 2011 and fully-paid maternity leave (even shorter than 20 weeks) was 
not supported.73 At national level, the minimum requirements of the Directives are generally 
met and national (case) law offers more protection and extensive rights. 

Pregnancy and maternity protection are often regulated in specific legislation at the national 
level (e.g. the Maternity Protection Act in Austria,74 Cyprus and Germany; or the legislation 
transposing the relevant directives in Greece) and/or as a matter of working conditions under 
general labour law, as laid down in a Labour Code and sometimes also in specific health and 
safety  legislation.  It  should  be  noted  that  before  the  transposition  of  the  Equal  Treatment 
Directive  (76/207/EEC)  it  was  allowed  under  Danish  law  and  quite  usual  for  employers  to 
dismiss or otherwise treat women unfavourably on grounds of pregnancy. 

For reasons of clarity, in Finland and in the Netherlands,75 pregnancy discrimination is 
explicitly defined as constituting direct discrimination. Interestingly, also different treatment 
on grounds of parenthood is defined in Finland as indirect discrimination and the provisions 
also  protect  men  with  family  responsibilities,  while  in  Estonia  less  favourable  treatment  in 
connection  with  pregnancy  and  childbirth,  parenting  and  the  performance  of  family 
obligations constitutes direct discrimination. Comparable provisions exist in Slovenia, where 
also  less  favourable  treatment  of  workers  on  grounds  of  parental  leave  is  considered  as 
discrimination.  Greek  legislation  explicitly  prohibits  discrimination  related  to  pregnancy, 
maternity, maternity leave, parental leave, adoption leave and paternity leave. In Lithuania, 
an  explicit  prohibition  of  discrimination  in  relation  to  pregnancy  and  maternity,  parental, 
adoption and paternity leave is lacking, and the general anti-discrimination provisions apply. 

7.2. Maternity leave 
All the national legislation provides for at least the minimum period of maternity leave of 14 
weeks, as set in the Pregnant Workers Directive. Many countries provide for longer periods. 
For  example  in  the  United  Kingdom,  all  pregnant  employees  are  entitled  to  52  weeks’ 
partially paid maternity leave. In Ireland, all employees are entitled to 26 weeks of maternity 
leave.  The  length  of  maternity  leave  varies  from  country  to  country  ranging  from  the 
somewhat  extreme  410  days  (i.e.  approximately  58  weeks)  in  Bulgaria  to  14  weeks  (fully 
paid) in Germany. The average duration of the maternity leave in most countries is between 
16-20  weeks.  In  most  countries,  the  period  of  maternity  leave  consists  of  compulsory  and 
facultative leave. Compulsory periods of leave are generally established immediately before 
and  immediately  after  confinement.  In  Greece  the  whole  period  of  leave  (17  weeks  in  the 
private sector, 5 months paid in the public sector) is compulsory. In the private sector, wages 

73   Proposal for a Directive of the European Parliament and of the Council amending Council Directive 

92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of 
pregnant workers and workers who have recently given birth or are breastfeeding, COM(2008) 637. See on the 
last debate in the Council in December 2011: http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?
reference=2008/0193(COD)&l=en, accessed 9 October 2013.  

74   However, the personal scope of this Act does not include some groups of workers, such as homeworkers, and 

employee-like persons are not protected in the area of occupational safety and health and against termination of 
their contract. 

75   Where the term ‘distinction’ is used, instead of ‘discrimination’. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

21 

 
 
 
                                                      
are  supplemented  by  social  security  benefits,  but  the  conditions  for  granting  benefits  are 
stricter than those for granting sickness benefits. In case these requirements are not met, the 
income during maternity leave is less than in case of sick leave, and this in our view breaches 
Article 11(3) of Directive 92/85/EEC. In some countries (e.g. Austria, Greece, Poland and 
Spain), the period of maternity leave is extended in case of multiple birth. 

In  most  countries,  during  the  period  of  maternity  leave,  employees  are  entitled  to  a 
minimum  maternity  benefit. The  amount  of  this  benefit  is  often  dependent  on the  length  of 
service or on the amount of contributions to the social security scheme. However, the amount 
of  the  benefit  can  be  increased  to  the  equivalent  of  full  pay,  for  instance  on  the  basis  of 
collective or other agreements, as is the case in for example Denmark, France and Sweden. 
In  Ireland,  the  statutory  maternity  benefits  are  supplemented  by  some  employers  up  to 
normal  remuneration.  In  some  countries  –  e.g.  the  Netherlands,  Poland  and  Germany  – 
employees simply receive 100 % of their pay. In order to make pregnancy and related leave 
cost-neutral  for  employers,  they  are  obliged  in  Denmark  to  pay  into  a  fund  that  in  turn 
reimburses  employers  for  any  costs  related  to  pregnancy,  maternity,  parental  leave  etc.  In 
Sweden,  the  scheme  is  extremely  flexible;  it  is  possible  to  receive  partial  benefits  during  a 
considerable number of days until the child is 12 years old. 

The right to return to the same or an equivalent job on terms and conditions which are no less 
favourable  and  to  benefit  from  any  improvement  in  working  conditions  is  provided  for  in 
Article  15  of  the  Recast  Directive  (a  similar  right  including  protection  against  dismissal 
applies to paternity and adoption leave, insofar as such leaves exist in the Member States).76 
In  most  States  a  worker  returning  to  work  after  her  maternity  leave  is  protected  against 
unfavourable treatment. Workers are generally guaranteed by law to be able to return to the 
same job or, if this is not possible, to a similar job. In some countries legislation specifies that 
a worker is entitled to additional vocational training and to benefit from any improvement in 
working conditions (e.g. Croatia). However, a few countries do not provide such a guarantee 
(e.g.  the  Netherlands)77  or  they  do  not  do  so  explicitly  (e.g.  Belgium,  Germany).  In 
Hungary, this protection does not apply to executive employees. In the view of the authors, 
and following the judgment of the CJEU in Danosa,78 this constitutes a breach of Article 15 
of Directive 2006/54/EC. 

In almost all national legislation there is very strong legal protection against the dismissal of 
a pregnant worker or a person on maternity leave. In Cyprus, protection against dismissal is 
provided  from  the  moment  the  worker  gives  a  written  notice  to  her  employer  that  she  is 
pregnant until three months after the end of the maternity leave. In Greece, protection against 
dismissal is provided during the whole period of pregnancy and irrespective of the employer’s 
knowledge  thereof;  and  18  months  after  childbirth  or  during  a  longer  absence  due  to 
pregnancy-related  sickness.  In  Germany,  the  protection  runs  until  four  months  after 
childbirth,  thus  longer  than  the  period  of  maternity  leave  (8  weeks  after  childbirth)  and  in 
Italy until 12 months after childbirth. In Croatia, there is an absolute ban on dismissal not 
only during pregnancy and maternity leave, but also during parental and adoption leave and 
part-time work and – among other things – periods of reduced working hours due to care for a 
disabled  child.  In  Poland,  it  is  irrelevant  for  the  protection  of  pregnant  women  against 
dismissal  whether  the  employee  was  aware  of  her  pregnancy  or  the  employer  has  been 
informed  about  the  pregnancy  (see  also  for  example  Italy  and  Spain).  The  only  thing  that 

76   Article 16 of the Recast Directive. 
77   The Commission started an infringement procedure on this issue on 24 January 2013, infringement No. 

2013/45. On 22 October 2014 the CJEU handed down its judgment on this issue, and dismissed the action as 
inadmissible because not all of the Article 258 TFEU formalities were complied with. Specifically, the 
Commission did not identify any rule of Dutch law that in its content or application was contrary to the 
wording or the objective of the relevant provisions of Directive 2006/54. See: Case C-252/13 Commission v 
the Netherlands [2014], ECR n.y.r. 

78   C-232/09 Dita Danosa v LKB Līzings SIA [2010] ECR I-11405. 

22 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
                                                      
matters  in  Polish  law  is  the  objective  existence  of  pregnancy  at  the  time  of  dismissal.  The 
dismissal  of  a  pregnant  worker  or  a  woman  on  maternity  leave  is  often  presumed  to  be 
unlawful (e.g. Portugal,  where  it  has to  be  previously  approved  by  a  public  body)79  and  in 
some  countries  (e.g.  in  Greece)  it  is  deemed  to  be  null  and  void.  In  Cyprus,  a  dismissal 
and/or notice is revoked if an employer is not aware of the fact that an employee is pregnant 
and the worker presents a medical certificate within five days from the day notice was given 
to  her.  In  some  countries,  the  pregnant  worker  is  only  protected  against  dismissal  once  the 
pregnancy  is  known  to  the  employer  (e.g.  Austria).  However,  in  Austria,  fixed-term 
contracts  are  extended  by  law  until  the  maternity  leave  begins.  In  the  United  Kingdom,  a 
woman  on  maternity  leave  enjoys  special  protection  against  redundancy  during  maternity 
leave, but if she is made redundant during this leave, the maternity leave period comes to an 
end.  

Compensation is always provided for, and is usually in an amount equivalent to up to six 
months’ salary, often combined with punitive or moral damages. Sometimes the reinstatement 
of the worker is ordered (e.g. France and Portugal).  

Although the protection of pregnancy and maternity is generally very strong – at least on the 
legislative  side  –  overall,  there  is  very  little  litigation.  Among  the  pregnancy  and  maternity 
cases that are brought to the national courts, the issue of dismissal is a major focus. In some 
countries  absences  related  to  maternity  are  not  taken  into  account  for  the  entitlement  to 
benefits such as a Christmas bonus or an assessment necessary for promotion.80 Women are 
reluctant to bring cases to court for fear of victimisation and due to a lack of evidence or the 
belief that complaining or commencing a case will result in more harm than good.  It is not 
rare for an employer to use tactics to induce the female employee to resign ‘voluntarily’. The 
so-called ‘white resignations’ in Italy are an example of these tactics. To avoid this practice, 
the resignation or the mutual termination of the employment contract of working mothers now 
has to be signed in front of an inspector of the Ministry of Labour. The same rule applies to 
fathers.  The  period  during  which  this  requirement  applies  runs  from  the  beginning  of  the 
pregnancy until the child reaches the age of three.  
Practices such as ‘white resignations’ show that the law ‘in the books’ is very different from 
the law in everyday practice. 

7.3. Paternity, parental, adoption and child care leave 
One of the continually recurring problems in relation to gender equality in employment is the 
reconciliation of family/private life with work. From this perspective, although not adopted as 
a specific gender equality directive, the Parental Leave Directive (96/34/EC now repealed by 
Directive  2010/18/EU)81  plays  an  important  role  in  the  gender  equality  discourse.  This 
Directive sets minimum standards designed to facilitate the reconciliation of work with family 
life.  It  provides,  inter  alia,  for  a  (in principle) non-transferable  right to  parental  leave  to  be 
granted  to  men  and  women  workers.  The  length  of  the  parental  leave  must  be  at  least  four 
months  and at least  one of  these  months has  to be  granted  on a  non-transferable  basis. The 
leave may be taken from the birth or adoption of the child until that child has reached the age 
of  eight  (Clause  2).  Workers  who  take  this  leave  must  be  protected  against  less  favourable 
treatment and dismissal (Clause 5(4)), and at the end of the parental leave they have the right 
to return to the same or equivalent job (Clause 5(1)). Workers may request changes to their 
working hours and/or patterns when returning from parental leave (Clause 6(1)). In the Recast 

79   See also the Former Yugoslav Republic of Macedonia. 
80   See  in  particular  the  following  cases  on  these  and  similar  issues:  C-136/95  Caisse  nationale  d'assurance 
vieillesse  des  travailleurs  salariés  (CNAVTS)  v  Evelyne  Thibault  [1998]  ECR  I-2011  (Thibault);  C-333/97 
Susanne Lewen v Lothar Denda [1999] ECR I-7243 (Lewen); C-471/08 Sanna Maria Parviainen v Finnair Oyj 
[2010]  ECR  I-6533  (Parviainen);  and  C-194/08  Susanne  Gassmayr  v  Bundesminister  für  Wissenschaft  und 
Forschung [2010] ECR I-6281 (Gassmayr). 

81   This Directive puts into effect the framework agreement on parental leave concluded on 18 June 2009 by the 

European social partners. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

23 

 
 
 
 
                                                      
Directive (2006/54/EC), the issue of the reconciliation of work, private and family life is also 
explicitly emphasised on several occasions. Most notably, the Member States are requested to 
encourage  the  social  partners  to  promote  equality  between  men  and  women  as  well  as 
providing  flexible  working  arrangements,  with  the  aim  of  facilitating  the  reconciliation  of 
work  and  private  life  (Article  21(2)).  Some  countries  have  included  references  to 
reconciliation in anti-discrimination legislation (e.g. Bulgaria). Legislation of other countries 
does  not  include  such  references  (e.g.  in  the  Czech  Republic,  France,  Germany,  Ireland 
and Romania). As such, it does not mean that no attention is being paid to the reconciliation 
of  work,  private  and  family  life  as  the  issue  is  often  covered  by  provisions  outside  sex 
discrimination legislation, such as labour law or other more specific legal instruments, such as 
Acts regulating the adjustment of working time or some forms of full-time or part-time leave 
for reconciliation purposes.82 

A  number  of  countries  provide  for  a  mix  of  various  forms  of  leave:  a  period  of  maternity 
leave to be taken exclusively by the woman is directly followed by a period of parental leave 
to be taken by either parent as they wish. This is for instance the case in Sweden, where the 
14  weeks’  maternity  leave  is  immediately  followed  by  parental  leave  for  up  to  480  days 
before the child is 12 years of age. These 480 days can be used in a very flexible manner. A 
comparable system exists now in Poland as well, where the paid maternity/paternity/parental 
leave may amount to 52 weeks. A similar system also exists in Denmark for example.  

In  most  European  countries,  parental  leave  is  an  individual  and  non-transferable  (i.e.  non-
transferable to other persons) right granted to both natural and adoptive parents (in Greece, 
Liechtenstein,  Malta  and  Spain  also  to  foster  parents).83  The  length  of  the  parental  leave 
varies  from  country  to  country  but  all  countries  provide  for  the  minimum  of  at  least  four 
months as guaranteed in the Parental Leave Directive 2010/18/EU.84  In the same vein, there 
are  variations  to  the  upper  limit  of  the  child’s  age  for  taking  parental  leave,  e.g.  2  years  in 
Austria (except when an older child is adopted), 3 years in the Czech Republic, 6 years in 
Greece and 8 years in Italy, Germany, and Latvia. In most countries, the leave can be taken 
in a flexible way, as a whole or in parts, full-time or part-time or even hourly. A paid daily 
working day reduction exists for example in Greece. This was recently made an autonomous 
right  for  fathers,  even  when  the  mother  is  self-employed.  In  the  civil  service  this  leave  is 
sometimes  proportionally  curtailed,  a  less  favourable  treatment  contrary  to  Directive 
2010/18/EU.  In  Lithuania,  adoptive  parents  are  entitled  to  an  additional  three  months  of 
parental leave in addition to the adoptive parents being entitled to the general right to parental 
leave until the child reaches the age of three. However, there is no provision on the minimum 
non-transferable  period  of  parental  leave  or  adoption  leave,  as  required  by  Directive 
2010/18/EU. In Hungary, both parents are entitled to unpaid leave until the child reaches the 
age  of  three  (or  the  age  of  ten,  in  case  of  permanently  ill  or  seriously  disabled  children), 
which includes a twenty four week maternity leave for mothers. . In some countries the period 
of parental leave is extended in the case of multiple births (e.g. the Czech Republic85).86   

82   For a more detailed overview see European Network of Legal Experts in the Field of Gender Equality and 

S. Burri Legal Approaches to Some Aspects of the Reconciliation of Work, Private and Family Life in Thirty 
European Countries, European Commission 2008 and European Network of Legal Experts in the Field of 
Gender Equality, A. Masselot, E. Caracciolo di Torella & S. Burri, Fighting Discrimination on the Grounds of 
Pregnancy, Maternity and Parenthood, European Commission 2012; both reports are available at:  
http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 9 October 2013. 

83   In Turkey, adoption leave only exists for civil servants. 
84   In some countries, this may include different forms of leave. 
85   In the Czech Republic, parental leave is extended if another child is born, so that parental leave can be taken 

until the youngest child reaches the age of three. If twins are born, parental leave is three years. 

86   See on this issue Case C-149/10 Zoi Chatzi v Ypourgos Oikonomikon [2010] ECR I-84/89 (Chatzi) and Greece 
on the application of this judgment by the national court, which upheld the claim for a second parental leave 
for parents of twins. 

24 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
                                                      
As a rule, parental leave is unpaid, although some, often modest, social security benefits 
may be provided (e.g. in Belgium, Bulgaria, Poland and the Czech Republic87). The leave 
is  paid  as  a  benefit  by  the  social  security  system  and  a  qualifying  period  of  employment 
applies. In other countries, parental leave can also be partly paid by the employer as a result 
of  a  collective  agreement  (e.g.  Denmark,  France  and  Sweden).  In  Germany,  parents  are 
entitled to parental allowances in the amount of 65 % to 100 % of their former income for up 
to 14 months and the allowances are financed through taxes. In Estonia, 435 days of parental 
leave are fully paid. 

Parental  leave  is  generally  taken  by  women  although  the  leave  is  often  transferable 
between  the  parents.  The  fact  that  parental  leave  is  often  not  paid  in  the  private  sector  is 
probably one of the reasons why more women take this leave than men. Some countries have 
introduced  policies  to  encourage  fathers  to  take  parental  leave.  For  example,  in  Italy  the 
length of parental leave is extended from 10 to 11 months when the father takes at least three 
months’ leave. In Germany, the law provides for a parental allowance for parents for up to 14 
months, provided that at least two months are taken by the other parent (normally the father); 
otherwise  the  parental  allowance  is  limited  to  12  months.  Starting  in  July  2015,  a  parent 
working part-time can receive his or her parental allowance in payments of halved amounts 
while  the  number  of  months  paid  is  doubled.  In  addition,  parents  working  part-time 
simultaneously  while  taking  simultaneous  parental  leave  for  4 months  are  entitled  to 
additional  parental  allowances  for  these months  (partnership  bonus).  Another  example  is 
Norway,  where  10  weeks  of  paid  leave  are  reserved  for  each  of  the  parents  and  cannot  be 
transferred  to  the  other.  Finland  has  a  non-transferable  ‘father’s  month’,  which  is  non-
transferable  to  the  mother,  but  is  an  extension  of  the  overall  period  of  parental  leave,  a 
transferable right available to both parents.88 Different forms of partly paid leave (maternity 
and paternity, parental and home care leave) can be taken until the child is three years old. 

Like in the case of pregnancy and maternity, dismissal connected with parental leave is 
strongly  prohibited  in  most  countries  (e.g.  Croatia,  Latvia  and  Poland).  Only  limited 
justifications  are  accepted,  for  instance  in  cases  of  bankruptcy  or  reorganisation  of  an 
undertaking. Any unfavourable treatment due to applying for or taking parental leave is also 
prohibited (e.g. Greece). Similarly, in most States, a worker returning to work after parental 
leave is protected against unfavourable treatment. A worker is generally guaranteed to be able 
to return to the same job or, if this is not possible, to a similar job. However, a few countries 
do  not  (explicitly)  provide  such  a  guarantee  or  provide  less  protection  (e.g.  Germany). 
Overall,  the  protection  granted  to  workers  taking  parental  leave  is  the  same,  whether  the 
worker  is  a  natural  or  an  adoptive  parent.  In  Lithuania,  employees  with  childcare 
responsibilities enjoy specific protection against dismissal. 

Some  countries  have,  in  addition  to  parental  and  adoption  leave,  a  right  to  childcare 
leave, which can be taken by parents, but also for example by grandparents (e.g. Bulgaria). In 
a few countries, such as Greece, there also are special leaves, for example if a child suffers 
from cancer. In Turkey, a new law allows parents of a disabled child or a child with a chronic 
illness in the civil service to take leave. In Ireland, there is provision for a carer’s leave with 
carer benefit and allowance for up to 104 weeks with a right to return to work when persons 
have  to  leave  the  workforce  or  work  shorter  hours  in  order  to  care  for  an  incapacitated 
person(s). A change of working hours after the end of parental leave can be requested in many 
countries (e.g. in Liechtenstein, Luxembourg, Poland), but not in Spain.  

In some countries, the rights of fathers are regulated specifically (e.g. the Fathers’ Leave Act 
in Austria). Paternity leave is not regulated at EU level and in some countries there is no such 
leave (e.g. Cyprus). However, in many countries a right to (paid or unpaid) paternity leave 
exists,  but  this  leave  is  often  rather  short  –  between  2  days  and  a  month  –  (e.g.  Belgium, 

87   In the Czech Republic, the allowance is EUR 460 per month, and can be taken for two years (the average 

monthly salary in the Czech Republic is about EUR 1000). 

88   See also Germany. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

25 

 
 
 
 
 
                                                      
Bulgaria,  Estonia,  France,  Hungary,  Latvia,  Lithuania,  Poland,  Portugal,  Romania, 
Spain, Sweden, Turkey89 and the United Kingdom). In Slovakia, both parents cannot take 
parental leave at the same time, and this period of leave is only available to one of the parents. 
There is no paternity leave during the period that mothers take maternity leave.  In contrast, 
Slovenia has a rather generous full-time paternity leave of 30 days, all of which are fully paid. 
A right to return to their job or an equivalent job after the paternity leave and to benefit from 
improvements in working conditions is provided in Bulgaria for example. 

Like  in  the  case  of  pregnancy  and  maternity,  parental  leave  rights  are  generally  well 
articulated  and  in  many  instances  extend  further  than  the  EU  requirements.  Yet,  their 
application  in  practice is  far  from  efficient  and  court  cases are  scarce.  In  addition,  in  many 
countries  only  few  fathers  actually  use  their  rights  (e.g.  the  Czech  Republic  and  France). 
Again, the law in the books is one thing, everyday reality is another.  

8. Statutory social security schemes  

Equal treatment of women and men in statutory schemes of social security was introduced in 
1979  (Social  Security  Directive  79/7/EEC).  Statutory  schemes  ensure  certain  benefits  for 
workers, which is not so much a matter that falls under the employment relationship, but is 
rather a matter of – general – social policy. They concern protection in the case of sickness, 
invalidity, old age, accidents at work, occupational diseases, and unemployment. Survivors’ 
and  family  benefits  are  in  principle  excluded.  Protection  of  women  on  the  grounds  of 
maternity  is  framed  as  an exception  to  the  principle of  equal  treatment  in  Article  4(2). The 
Directive  contains  a  long  list  of  derogations,  i.e.  areas  in  which  discrimination  is  not 
prohibited (Article 7(1)). The two most important derogations pertain to: 
– 

the  determination  of  different  pensionable  ages  for  men  and  women  for  the  purpose  of 
granting of old-age pensions and retirement pensions; and 
certain advantages related to the fact that the persons concerned have brought up children 
and may have interrupted employment for that purpose. 

– 

Despite  these  derogations,  the  Directive  has  had  a  considerable  impact  in  a  number  of 
Member  States,  such  as  the  Netherlands,  Belgium,  Germany,  Ireland  and  the  United 
Kingdom.  
  Moreover, some litigation revolved around the question of whether a scheme is statutory 
or occupational. As already pointed out in Section 5 above, this is particularly important since 
certain  exceptions  are  allowed  under  the  Statutory  Social  Security  Directive  79/7/EEC,  but 
not  under  Article  157  TFEU  or  the  Recast  Directive  2006/54/EC  (which  repealed  the 
Occupational Schemes Directive).  
  Most  of  the  transposition  measures  taken  by  the  respective  countries  concerned 
amendments  to  the  rules  governing  the  various  schemes.  In  many  countries,  social  security 
legislation  is  a  complicated  matter,  governed  by  a  web  of  legislative  provisions,  and  this  is 
also true for the introduction of gender equality in this domain. All the relevant legislation had 
to be screened. The CJEU has often answered prejudicial questions on issues of both direct 
and  indirect  sex  discrimination in  statutory  social  security  schemes.90  Even  now,  legislative 
gaps persist. For example in Belgium, apprentices under the age of 18 in small businesses are 
not entitled to maternity benefits during maternity leave. In Bulgaria, gender-based actuarial 
factors are used in the pension system. In Croatia, workers on sick leave in the six months 
since returning from parental leave are entitled to less salary compensation due to the fact that 
their salary on which the compensation is based is then much lower than the average salary. 

89   Paid or unpaid paternity leave for male workers is left to individual and collective labour agreements. Male 

civil servants were previously granted paid paternity leave of three days upon the birth of his child. The Sack 
Law extended this to ten days. Moreover, it introduced an unpaid paternity leave of 24 months for male civil 
servants, upon request.  

90   See for an example of prohibited indirect sex discrimination in Austrian law the recent Case C-123/10 

Waltraud Brachner v Pensionsversicherungsanstalt [2011] ECR I-10003 (Brachner). 

26 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
                                                      
As  women  constitute  the  vast  majority  of  workers  that  take  parental  leave,  women 
disproportionately suffer this disadvantage.91 In many countries, the calculation of benefits in 
statutory  schemes  is  based  on  previously  earned  salary  and/or  periods  of  service.  Such 
methods  obviously  mainly  disadvantage  women  who  have  interrupted  their  careers,  have 
faced periods of unemployment, have worked part time,92 have taken leaves and on average 
earned  less  than  men  during  their  working  life  (e.g.  Belgium,  Estonia,  Greece,  Ireland, 
Italy,  Latvia,  the  former  Yugoslav  Republic  of  Macedonia,  Malta  and  Portugal93). 
Equalising  the  mandatory  period  of  pension  contributions  further  exacerbates  this  problem 
(e.g.  Romania).  In  addition,  some  groups  are  excluded  from  statutory  social  security 
schemes. This is for example the case for so-called mini-jobs in Germany. Since 2013, these 
jobs are subject to mandatory pension scheme contributions with the possibility of exemption. 
The  negative  consequences  of  the  current  economic  crisis  are  often  also  felt  in  the  area  of 
pensions and social benefits (e.g. Bulgaria, Greece, Portugal and Romania). 

In some States, the provisions in general equality legislation may also concern statutory 
social security. For instance in Belgium, the so-called ‘Gender Act’ from 2007 also contains a 
prohibition of discrimination in statutory social security schemes. Similarly, the Polish Anti-
Discrimination Act applies to (access to) the social security system. In some countries, laws 
regulating the social security system include a non-discrimination clause (e.g. Romania). 

8.1. Family and survivors’ benefits 
Family benefits and survivors’ benefits are not covered by the Social Security Directive. An 
exception to this is when benefits are granted by way of increase, due to the risks mentioned 
in  Article  3(1)(a);  i.e.  invalidity,  old  age,  accidents  at  work  and  occupational  diseases,  and 
unemployment  (Article  3(2)).  Nevertheless,  it  is  interesting  to  note  that  in  most  of  the 
Member States and EEA countries, gender discrimination in these areas has been abolished, 
independently of EU law requirements. However, there is no widower’s pension in Cyprus, 
except  when  a  widower  is  permanently  incapable  of  self-support.  In  Italy,  some  groups  of 
part-time workers are excluded from family allowances. In the former Yugoslav Republic of 
Macedonia, mothers are entitled to a parental benefit and the father can only substitute the 
mother in specific cases such as death or loss of parenthood of the mother. 

8.2. Social assistance 
Social assistance is partially excluded from the scope of the Social Security Directive. Only 
where  it  intends  to  supplement  or  replace  the  statutory  schemes  does  the  prohibition  of 
discrimination  laid  down  in  that  Directive  apply  (Article  3(1)(b)).  For  example,  a  family 
benefit for low income families that supplements an unemployment benefit would fall under 
the scope of the Directive. Yet, it would seem that, overall, the social assistance schemes are 
at  least  gender-neutral  (which  unfortunately  sometimes  means  that  men  and  women  are 
treated  equally  poorly,  the  level  of  benefits  often  being  low).  An  exception  to  the  equal 
treatment in social assistance schemes is the fact that a  means test, which seems to exist in 
quite  a  few  of  the  schemes  (although  it  has  different  modalities),  may  amount  to  indirect 
discrimination. However, it is to be expected that the means test will be objectively justified if 
submitted to the courts, the CJEU included. From the CJEU case law it can be deduced that, 
in schemes which guarantee a minimum subsistence level, the Member States may take into 
account that persons who are dependent on spouses are less in need of a benefit than single 
persons. This is indeed motivated by the necessary control of social expenditure.94 As it is still 
the case that more women are dependent on their husbands than the other way round, at the 
end of the day fewer women than men will qualify for the assistance in question. 

91   The same problem occurs in Romania.  
92   See in particular Norway and the recent Case C-385/11 Isabel Elbal Moreno v Instituto Nacional de la 

Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS) [2012], n.y.p. (Elbal Moreno). 

93   However, maternity and paternity leaves are taken into account. 
94   Case C-229/89 Commission of the European Communities v Kingdom of Belgium [1991] ECR I-02205. 

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27 

 
 
 
 
                                                      
8.3. Derogations from equal treatment: periods of care 
As  to  the  derogations  from  the  principle  of  equal  treatment,  a  similar  tendency  can  be 
observed:  many  countries  have  abolished  gender  discrimination  on  their  own  initiative.  As 
was already observed, the two most important derogations relate to periods of care and to the 
pensionable age.  

As far as periods of care are concerned, these are taken into account by some States in 
one form or another. In fact, there is a whole array of these ‘advantages’ that relate to the fact 
that  women  (or  more  often  one  of  the  parents)  have  engaged  in  raising  the  children.  These 
advantages can take the form of qualifying periods, i.e. periods on leave that still count for the 
purposes of (certain types of) social security, various bonuses or notional contributions. Much 
depends on the national scheme in question. 

The majority of the countries concerned seem to opt for gender-neutral advantages in this 
respect.  In  France,  legislation  granting  pension  credits  to  mothers  per  child  had  to  be 
amended.95  However,  female  civil  servants  still  enjoy  an  increased  insurance  coverage  for 
pensions  linked  to  maternity  if  there  is  an  agreement  between the  father  and  the  mother.  In 
case the parents do not agree, the advantage will be granted to the parent who can prove that 
he/she has contributed more and for a longer period to the education of the child. In Greece, 
women  employed  in  the  private  sector,  in  the  first  place,  are  entitled  to  a  service/pension 
credit and only if they make no use of this may the father benefit from it. In some countries 
only women  may benefit (e.g. Italy). In Spain, the periods of long-term parental leave and 
working time reduction to take care of children are taken into account for pensions. 

8.4. Derogations from equal treatment: difference in pensionable age 
As far as the traditional difference in pensionable age is concerned, the overall picture of the 
statutory schemes in the Member States and the EEA countries is as follows: 

– 

– 

– 

In  some  States  there  is  no  difference  in  this  respect  (e.g.  Cyprus,  France,  Iceland, 
Ireland,  Latvia  (since  2008),  Liechtenstein  (since  2010),  Luxembourg,  Malta  (since 
2006), the Netherlands, Norway, Portugal, Sweden, Spain); 
In  other  States  there  is  or  has  been  a  process  of  equalising  the  pensionable  age, 
sometimes  with  long  transitional  arrangements  (e.g.  Austria,  Belgium,  Croatia, 
Denmark,  Estonia,  Greece  (with  a  very  short  transitional  period),  Hungary,  Italy, 
Lithuania, Poland and the United Kingdom);  
In  the  remaining  States  the  difference  in  pensionable  age  is  maintained  (e.g.  Bulgaria, 
Czech Republic (if a woman has brought up children), Romania and Slovenia). 

Interestingly, it is in particular the former ‘socialist’ countries that maintain this difference. In 
these  countries  the  difference  is  regarded  as  fair  since  it  compensates  for  unequal  working 
conditions  for  men  and  women.  As  we  have  seen  in  Section  5  on  occupational  pension 
schemes  the  CJEU  has  another  opinion  concerning  this  difference  in  pensionable  age  cases 
and  such  direct  sex  discrimination  is  prohibited.  However,  in  the  area  of  statutory  social 
security differences in pensionable age are not prohibited. Although the difference has given 
rise  to  some  litigation,  the  (male)  complainants  have  not  been  successful  very  often  up  to 
now.  In  the  Czech  Republic,  the  lower  pensionable  age  for  women,  when  a  woman  has 
raised  one  or  more  children,  does  not  apply  to  men,  even  where  they  raise  children  alone. 
Very recently, the CJEU considered such a rule incompatible with European Union law and 
the  general  principles  of  equal  treatment  and  non-discrimination.96  It  remains  to  be  seen 
whether this approach will be followed in other cases as well.  

95   See also Case C-206/00, Henri Mouflin v Recteur de l'académie de Reims [2001] ECR I-10201 (Mouflin) and 
more recently: Case C-173/13, Maurice Leone,Blandine Leone v Garde des Sceaux, ministre de la Justice, 
Caisse nationale de retraite des agents des collectivités locales, n.y.r. 
96   Case C-401/11 Blanka Soukupová v Ministerstvo zemědělství, ECR n.y.p. 

28 

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9. Self-employed and assisting spouses 

Protection against gender discrimination of self-employed persons, their spouses, and insofar 
as recognised by national law, the life partners of the self-employed, who are not employees 
or partners, is a complex area. In some countries (e.g. the Netherlands) the number of self-
employed persons has been increasing and they experience severe consequences of the recent 
economic  downturn.  The  quite  weak  provisions  of  Directive  86/613/EEC  have  been 
modernised and replaced by the stronger provisions of Directive 2010/41/EU, which repeals 
the  former  Directive.  But  even  so,  the  protection  of  self-employed  persons  in  EU  law  still 
shows  lacunas.  Directive  2010/41/EU  requires  that  the  Member  States  take  the  necessary 
measures  to  ensure  the  elimination  of  all  provisions  which  are  contrary  to  the  principle  of 
equal  treatment,  for  instance  in  relation  to  the  establishment,  equipment  or  extension  of  a 
business  or  the  launching  or  extension  of  any  other  form  of  self-employed  activity  (Article 
4(1)). Direct and indirect discrimination, harassment and sexual harassment and an instruction 
to discriminate are prohibited. The Directive does not extend the social protection of the self-
employed,  but  where  a  system  for  social  protection  for  self-employed  workers  exists  in  a 
Member State, that State has to take the necessary measures to ensure that spouses and life 
partners can benefit from social protection in accordance with national law (Article 7). The 
Member  States  have  to  take  the  necessary  measures  to  ensure  that  female  self-employed 
workers,  and  female  spouses  and  life  partners  may,  in  accordance  with  national  law,  be 
granted a sufficient maternity allowance allowing interruptions in their occupational activity 
owing to pregnancy or motherhood for at least 14 weeks (on a mandatory or voluntary basis). 
Measures also have to be taken to ensure access to temporary replacements or social services 
(Article  8).  Worth  mentioning  is  that  equality  bodies  should  provide  among  other  things 
independent assistance to victims of discrimination, conduct independent surveys etc. (Article 
11). 

To  this  one  may  add,  however,  that  various  other  gender  equality  directives  are  also 
relevant  for  the  equal  treatment  of  the  self-employed,  but  then  in  certain  respects  only. 
Directive  2006/54/EC,  for  instance,  prohibits  discrimination  in  access  to  self-employment 
(Article  14(1)(a))  and  occupational  social  security  schemes  (Articles  10-11).  Also  Directive 
2004/113/EC,  the  Goods  and  Services  Directive  discussed  below,  is  relevant  to  the  self-
employed,  because  it  requires  equal  treatment  in  relation  to,  for  instance,  the  renting  of 
accommodation and services such as banking, insurance and other financial services.  

In  many  Member  States,  no  specific  law  implementing  Directive  2010/41/EU  has  been 
adopted  (e.g.  Austria,  Bulgaria,  Germany,  Ireland,  Italy,  Liechtenstein,  Lithuania  and 
Luxembourg).  In  some  countries,  the  equal  treatment  legislation  applies  (e.g.  Denmark, 
Hungary,  Iceland,  Italy,  the  Netherlands  and  the  United  Kingdom).  In  Germany,  the 
General Equal Treatment Act applies in some respects to self-employed persons, although in 
practice only if they are ‘quasi-subordinates’. Self-employed persons are not covered by the 
statutory social security systems and they can only take part in occupational pension schemes 
voluntarily. However, there are professional pension funds. In the United Kingdom, no new 
measures were considered necessary to transpose Directive 2010/41/EU, save in the case of 
Article  8. The  State Maternity  Allowance97,  make  provision  for the payment  of a  maternity 
allowance in line with the minimum requirements imposed by the Directive to the partners of 
self-employed workers who participate in their partners’ self-employed business. but who do 
not receive payment in respect of such participation. Whereas assisting spouses/ partners who 
were  paid  for  their  efforts  would  have  been  entitled  to  maternity  allowance  prior  to  the 
implementation of the Regulations, those who were not paid for their assistance were not.  

97   The Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-employed Earner) 

Regulations 2014, which came into effect on 1 April 2014. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

29 

 
 
 
                                                      
Often, the concept of self-employment is not clear at national level or differs according to 
different national laws (e.g. Bulgaria, Hungary and Sweden).98 The protection of the health 
and  safety  of  pregnant  self-employed  women  or  assisting  spouses  merits  specific  attention. 
The same is true for conditions applying to access to private insurance schemes in relation to 
pregnancy and maternity. For instance in the Netherlands, self-employed women encounter 
difficulties in accessing private health insurance schemes, in particular as far as insurance for 
pregnancy and maternity leave is concerned. 

9.1. Pregnancy, maternity and parental rights 
The protection of the pregnancy, maternity and parental rights of self-employed women and 
assisting spouses are often closely linked to access to social security schemes in general. In 
Finland,  all  parents  are  entitled  to  benefits  during  maternity,  paternity  and  parental  leave, 
including the self-employed. In Norway self-employed women receive full maternity benefits 
and in Belgium, a limited scheme of (paid) maternity leave of 8 weeks has been introduced. 
Italy  has  a  maternity  allowance  for  self-employed  women  and  in  certain  areas  also  three 
months’  remunerated  parental  leave.  Some  countries  have  legislation  concerning  pregnancy 
and  maternity  (and  often  also  adoption),  which  applies  to  self-employed  women  (e.g. 
Croatia, Luxembourg, Poland, Slovakia, Slovenia, Spain and Turkey), but the conditions 
are sometimes less favourable than for workers (e.g. Czech Republic99, Estonia and Iceland). 
In Germany, self-employed women are not entitled to maternity protection and allowances, 
unless  they  are  voluntarily  insured  under  the  statutory  health  insurance  including  sickness 
benefits. However, such insurance is costly. It might be therefore questioned whether this gap 
is not contrary to Article 8 of the Directive.100 Self-employed women are entitled to parental 
allowances  in  this  country.  In  Greece,  only  self-employed  women  who  are  neither  spouses 
nor life partners may be granted a maternity allowance, while the Act implementing Directive 
2010/41/EU  applies  also to  spouses  and  life partners.  In  the  view  of  the  authors,  this  might 
also  be  a  breach  of  the  Directive.  In  Latvia,  a  self-employed  person  is  covered  by  the 
mandatory statutory social insurance (which covers among others maternity), but the spouse 
of  a  self-employed  person  is  not;  he/she  can  join  the  scheme  voluntarily.  In  2014,  the  UN 
CEDAW  Committee  judged  that  the  Dutch  State  had  violated  the  CEDAW  Convention  by 
abolishing  the  maternity  leave  scheme  applicable  to  self-employed  women  up  to  2004  and 
advised the Dutch State to compensate women who gave birth between 2004 and 2008.101 In 
most countries no provisions exist on services supplying temporary replacements and this is a 
serious problem. However, sometimes specific facilities are provided such as, for example, a 
stand-in  system  in  the  agricultural  sector  (Finland)  or  replacements  provided  through 
insurance  companies.  Benefits  for  temporary  replacements  are  sometimes  granted,  but  only 
for a short period of time and the benefits are rather low. 

9.2. Professional status of assisting spouses 
As  already  observed,  the  professional  status  of  assisting  spouses  and  life  partners  and  in 
particular their position under the social security scheme is a key problem and the picture is 
rather complex. In the former Yugoslav Republic of Macedonia, assisting spouses are not 
recognised in legislation as a separate category. The situation of the legal status of assisting 
spouses, in particular as reflected in the social security scheme, is unclear in Bulgaria and in 
some countries there is no protection or recognition at all.  

98   See further European Network of Legal Experts in the Field of gender Equality, N. Countouris & 

M. Freedland, The Personal Scope of the EU Sex Equality Directives, European Commission 2012, available 
at: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 21 October 2013. 
99   Where there is an obligatory period of 280 days of insurance in order to be entitled to maternity benefit.  
100  The Federal Constitutional Court did not consider it incompatible with the general principle of equality under 

the German Constitution: Judgment of 3 April 1987, 1 BvR 1240/86. 

101   See CEDAW/C/57/D/36/2012, online at http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/

Jurisprudence.aspx, accessed 22 May 2014. 

30 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
                                                      
A form of recognition of the status of assisting spouses is mirrored in the social security 
systems  of  those  States  where  affiliation  is  compulsory.  Mostly  additional  requirements 
apply, for instance that an assisting spouse has a taxable income and/or reaches a certain level 
of income. In these systems assisting spouses enjoy individual rights. In Austria for example, 
helping  within the  enterprise  of  a  spouse  is  a legal  part  of  spousal  duties  as  defined  by  the 
Marriage Act. However the helping spouse is entitled to an adequate remuneration combined 
with  social  security  registration  in  cases,  where  their  contribution  reaches  the  extent  of  a 
proper  working  relation.  The  status  as  a  helping  spouse  alone  does  not  create  individual 
rights.  In  some  countries,  important  steps  have  been  taken  in  this  respect.  In  Malta  and 
Spain, a new legal status has been created so as to recognise the work and social protection of 
assisting spouses. In Poland, persons collaborating with a self-employed person are protected 
against  some  risks  (e.g.  old  age  and  disability).  These  persons  include  spouses,  but  also 
(adoptive) children, parents, and step- and adoptive parents who share a common household 
with  the  self-employed  person.  But  some  categories  of  self-employed  persons,  such  as 
farmers,  and  persons  collaborating  with  them,  enjoy  less  protection  in  this  country  (e.g.  no 
right to childcare leave). In Belgium, affiliation to the whole system of social security for the 
self-employed,  covering  inter  alia  sickness  and  certain  maternity  benefits,  has  been  made 
compulsory for assisting spouses as well. Also in Slovenia, both self-employed persons and 
assisting  spouses  are  covered  by  mandatory  social  security  schemes.  On  certain  conditions 
they are also entitled to maternity and parental leave and benefits. In Portugal, the maternity 
provisions for dependent workers have been partially extended to independent workers. The 
latter  category,  which  also  includes  assisting  spouses,  is  also  covered  by  a  social  security 
scheme.  In  France,  since  2005,  the  spouse  of  a  self-employed  worker,  participating  in  the 
spouse’s  activity,  has  to  decide  whether  he/she  wishes  to  work  in  the  business  as  an 
employee,  as  a  partner  or  as  a  co-working  spouse  (conjoint  collaborateur).  In  the  last-
mentioned  case,  the  co-working  spouse  must  contribute  to  a  pension  scheme.  Furthermore, 
this spouse can apply for sickness benefit and for a daily maternity benefit plus a benefit for a 
temporary replacement. The spouse can also apply for a benefit for a temporary replacement 
for  paternity  leave.  In  Cyprus  assisting  spouses  are  covered  compulsorily  by  the  social 
security scheme for the self-employed and are entitled to all benefits on the same conditions, 
including  maternity  allowance.  Some  form  of  recognition,  combined  with  mandatory  social 
security coverage, also exists for instance in the Czech Republic and the United Kingdom. 
Some  countries  have  a  mixed  system  of  mandatory  cover  for  some  risks  and  voluntary 
insurance  for  others.  For  example  in  the  Netherlands  assisting  spouses  are  automatically 
covered  by  the  Old-Age  Pension  Act  and  the  Survivor’s  Pension  Act  and  they  can  claim 
social  assistance.  Other  risks  can  be  covered  by  private  insurance.  When  assisting  spouses 
may  join  certain  social  security  schemes  on  a  voluntary  basis,  this  is  usually  subject  to  the 
condition that contributions are paid. 

10. Goods and services 

The equal treatment of men and women in the access to and the supply of goods and services 
was introduced in EU gender equality law in 2004(Directive 2004/113/EC). Here, for the very 
first time, gender equality outside the field of employment is addressed. Direct and indirect 
discrimination,  including  less  favourable  treatment  of  women  for  reasons  of  pregnancy  and 
maternity,  is  prohibited,  as  well  as  harassment  and  sexual  harassment  and  instruction  to 
discriminate wherever goods or services are offered or supplied (Article 4). The Directive also 
contains a provision on positive action (Article 6). 

An important exception is that the Directive does not apply to the content of media and 
advertising  or  to  education  (Article  3(3)).  Another  exception  relates  to  goods  and  services 
provided  exclusively  or  primarily  to  members  of  one  sex  when  there  is  a  justification  for 
doing so. Even so, the aim pursued must be legitimate and the means chosen to achieve that 
aim  must  be  appropriate  and  necessary  (Article  4(5)).  In  all  new  insurance  contracts 
concluded after 21 December 2007, the use of sex as a factor in the calculation of premiums 
and benefits may not result in differences in individual premiums and benefits (Article 5(1)). 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

31 

 
 
 
 
In the Test-Achats case, the CJEU considered the derogation to this rule as provided in Article 
5(2) invalid with effect from 21 December 2012.102 Costs related to pregnancy and maternity 
may in no event result in differences in individual premiums and benefits (Article 5(3)). 

The  Directive  has  been  transposed  in  most  of  the  countries  by  amendments  to  existing 
legislation.103  In  some  countries  new  legislation  has  been  designed  to  regulate  sex 
discrimination in relation to goods and services. Often the legislation is rather similar to the 
provisions of the Directive, as regards both the principle of equal treatment and the exceptions 
allowed (e.g. Austria, Croatia, Cyprus, Greece, Italy, Liechtenstein, the former Yugoslav 
Republic  of  Macedonia,  Poland,  Romania  and  Spain).  But  in  many  countries,  the 
legislation  goes  further  than  what  the  Directive  requires  and  also  covers  areas  explicitly 
excluded  from  Directive  2004/113/EC.  For  instance,  gender  discrimination  in  education  is 
in  Belgium,  Croatia,  France,  Hungary,  Latvia,  Lithuania,  Malta,  the 
covered 
Netherlands,  Slovakia,  Sweden  and  the  United  Kingdom  (although  it  permits  single-sex 
schools).  Legislation  in  Belgium,  Croatia,  France,  Ireland,  Latvia,  Luxembourg,  Malta 
and the United Kingdom also covers discrimination in relation to the media and advertising. 
Lithuanian legislation prohibits humiliating advertisements and the encouragement of public 
attitudes that one sex is superior to the other. In for example Bulgaria gender-biased or even 
directly sexist content of advertisings is rather frequent.  

On  the  other  hand,  some  limitations  may  have  sneaked  in  during  the  transposition 
process,  for  instance  in  Germany.  The  prohibition  of  harassment  and  sexual  harassment  is 
not  part  of  the  prohibition  of  discrimination  in  the  provision  of  goods  and  services  under 
public  law  and  the  provision  on  sexual  harassment  in  civil  law  is  restricted  to  the  area  of 
employment.  In  addition,  German  legislation  regulates  gender  discrimination  in  access  to 
goods  and  services  only  to  the  extent  that  the  goods  and  services  are  covered  by  ‘mass 
contracts’.  These  are  contracts  concluded  on  similar  terms  with  multiple  parties,  typically 
without reference to the identity of the other party, or where the identity of that person is of 
little  importance.  Such  a  limitation  is  highly  questionable  as  a  proper  transposition  of  the 
Directive. In Latvia, the provision for services between individuals is not covered. 

However, overall, the central concepts have been implemented on a satisfactory basis and 
most of the national legislation provides scope for positive action in the area of access to and 
the supply of goods and services, although sometimes in cautious terms. Such positive action 
may,  for  instance,  take  the  form  of  ‘women’s  universities’  and  other  mechanisms  to 
encourage  women  to  enter  technical  fields.  The  main  problem  is  that  the  national 
transposition  legislation  seems  to  be  rather  abstract  and  vague,  in  particular  because  the 
transposing  legislation  does  not  define  ‘goods’  and  ‘services’  (e.g.  Norway104  and 
Slovenia).105 

Following the Test-Achats case, amendments were made to legislation concerning private 
insurances  in  all  but  three  Member  States,  in  which  adoption  of  legislation  is  pending.  In 
Germany,  insurance  rates  were  increased  for  both  sexes  after  21  December  2012,  a  clear 
example of levelling down, which disadvantages both men and women.106 In Finland, the use 

102  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-773 (Test-Achats). See on this issue the Communication from the Commission Guidelines on the 
application of Council Directive 2004/113/EC to insurance, in the light of the judgment of the Court of Justice 
of the European Union in Case C-236/09 (Test-Achats), COM (2011) 9497. 

103  For a detailed discussion see European Network of Legal Experts in the Field of Gender Equality, S. Burri & 
A. McColgan, Sex-Segregated Services, European Commission 2008 and European Network of Legal Experts 
in the Field of Gender Equality, S. Burri & A. McColgan Sex Discrimination in the Access to and Supply of 
Goods and Services and the Transposition of Directive 2004/113/EC, European Commission 2009. Both 
reports are available via: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 21 
October 2013. 

104  Norwegian legislation does not define ‘goods’ or ‘services’.   
105  In Slovenian legislation, two different words are used for ‘goods’. 
106  See http://www.manager-magazin.de/finanzen/versicherungen/0,2828,849065,00.html and 

32 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
                                                      
 
of  sex-based  actuarial  factors  is  only  prohibited  in  policies  sold  to  consumers,  and  still 
allowed  in  insurance  schemes  sold  to  employers.  In  a  few  countries,  proposals  to  bring 
legislation  in  line  with  the  CJEU  Test-Achats  case  are  still  pending  (e.g.  Luxembourg). 
Below,  some  salient  issues  relating  to  the  access  to  and  supply  of  goods  and  services  are 
briefly discussed. 

10.1. Pregnancy, maternity and parenthood 
A rather widespread phenomenon is discrimination in relation to pregnancy and maternity. In 
some countries, pregnant women or women with young children may experience difficulties 
in obtaining loans, even if these are enterprise-related (see also above Section 9.1). In Latvia, 
insurances  do  not  cover  risks  related  to  pregnancy  and  maternity.  Another  well-known 
example of pregnancy discrimination is restrictions on pregnant women travelling by aircraft 
which are not always necessary and objectively justified. In Hungary, it is quite common for 
mothers  with small  children  to be  prohibited  from  entering  a  shop  with  a  pram.  In  Poland, 
owners often refuse to rent flats to pregnant women or families with young children.  

Viewed  against  this  background  it  is  important  to  note  that  most  countries  explicitly 
regulate discrimination in connection with pregnancy and maternity in the area of goods and 
services (e.g. Cyprus, Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Malta, 
the Netherlands, Norway, Portugal, Romania, Slovakia, Slovenia, Spain and the United 
Kingdom). In other countries discrimination in connection with pregnancy and maternity is 
not  regulated  or  is  only  implicitly  regulated.  Whether  this  is  to  be  regarded  as  problematic 
very  much  depends  on  the  national  context.  Another  point  of  concern  might  be  the  lack  of 
specific provisions dealing with breastfeeding as a form of discrimination. 

Another  form  of  discrimination  closely  related 

is 
discrimination against parents, i.e. in particular parents with young children who experience 
difficulties  in,  for  instance,  access  to  public  spaces  and  transport.  In  some  countries 
discrimination between parents occurs and amounts to direct sex discrimination, for example 
when fathers are not allowed to stay with their hospitalised children (e.g. Romania).107 

to  maternity  discrimination 

10.2. Derogations from equal treatment 
Under the Directive, differences in treatment are allowed ‘if the provision of the goods and 
services exclusively or primarily to members of one sex is justified by a legitimate aim and 
the  means  of  achieving  that  aim  are  appropriate  and  necessary’.  A  great  deal  of  the 
transposing legislation has adopted this provision and overall the legislation appears to be at 
least  broadly  in  conformity  with  the  Directive.  In  some  countries  –  Estonia,  Ireland,  the 
Netherlands and Sweden – acceptable instances of differential treatment are explicitly listed. 
In the Netherlands, the closed system of exceptions might be regarded as unduly restrictive, 
as some sex-segregated services should be allowed. Examples of such differential treatment 
are  services  to  women  suffering  from  domestic  or  sexual  violence,  sanitary  facilities, 
changing and sleeping rooms, saunas, swimming pools, fitness clubs, female driving schools 
and  taxi  services  which  specialise  in  secure  taxi  services.  Differential  treatment  may  be 
justified  in  such  cases  on  grounds  of  personal  privacy,  decency,  safety  considerations,  etc. 
Similarly, a difference in treatment in relation to beauty and sports contests may be justified.  
However, there are also instances of different treatment which are more questionable, as 
in  the  case  of  male-only  clubs.  In  Ireland,  a  male-only  golf  club  was  considered  not  to  be 

http://www.manager-magazin.de/finanzen/versicherungen/0,2828,851956,00.html,both accessed 12 October 
2012.  

107  See further European Network of Legal Experts in the Field of Gender Equality, A. Masselot, E. Caracciolo di 

Torella & S. Burri, Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood, 
European Commission 2012, available at: http://ec.europa.eu/justice/gender-equality/document/
index_en.htm#h2-9, accessed 9 October 2013. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

33 

 
 
 
 
 
 
                                                                                                                                                        
discriminatory  under  the  Acts,  which  gave  rise  to  controversy.108  In  2012,  the  Romanian 
National  Council  for  Combatting  Discrimination  (CNCD)  decided  on  an  interesting  case  of 
discrimination against women in the access to goods and services. The CNCD sanctioned a 
service  provider  for  displaying  an  announcement  at  the  ticket  booth  that  women  were  not 
allowed  to  buy  tickets  for  a  particular  football  game.  The  CNCD  stated  that  the  measure, 
allegedly  taken  to  protect  women  from  the  violence  that  was  expected  to  escalate  at  that 
particular game, did not serve a legitimate aim; these events should not be violent in the first 
place and such a way of addressing violence in sports may give rise to the idea that women 
should  be  generally  excluded  from  football  events.109  Absolutely  prohibited  under  both  the 
Directive  and  national  transposition  legislation  are  practices  such  as  differential  pricing  of 
services  in  or  access  to  nightclubs  and  differential  pricing  structures  in  dating  services. 
Obviously, this type of differentiation reinforces sexual stereotyping and the commoditisation 
of women, instead of fighting discrimination on grounds of gender.  

11. Enforcement and compliance 

An important part of EU gender discrimination law relates to the defence of equal treatment 
rights.  Provisions  have  been  enacted  regarding  protection  through  court  proceedings, 
remedies and sanctions, the burden of proof, and protection against victimisation. Similarly, 
the  promotion  of  equal  treatment  through  equality  bodies  and  through  social  dialogue  is 
considered  vital.  Relevant  provisions  can  be  found  in  for  example  Title  III  of  the  Recast 
Directive (2006/54/EC) and in Chapter II of Directive 2004/113/EC. 

Before  embarking  on  a  brief  discussion  of  all  these  aspects,  it  seems  advisable  to 
highlight three general points: the so-called direct effect and indirect effect of gender equality 
law, the role of the CJEU and the role of the European Commission. 

In 1975, in the famous Defrenne II case, the CJEU decided that individuals may rely on 
Article  119  EEC  Treaty  (now  Article  157  TFEU)  in  the  national  courts  in  order  to  receive 
equal pay for equal work or work of equal value, without discrimination on grounds of sex.110 
Later case law also clarified that directives can be relied on in the national courts, although 
with  certain  limitations.  In  any  event,  this  possibility  to  use  EU  gender  equality  law  in 
national  proceedings  is  a  powerful  tool  for  individuals  to  enforce  their  EU  equality  rights 
wherever gender equality law is not properly transposed into national law or where it is not 
adequately applied and protected. In addition, national courts have the obligation to interpret 
domestic  law,  as  far  as  possible,  in  conformity  with  EU  law,  including  directives  (indirect 
effect).111 
  Whenever EU gender equality law is relied on in the national courts, the courts are able 
and  sometimes  even  obliged  to  request  preliminary  rulings  on  the  interpretation  of  EU  law 
provisions from the CJEU (Article 267 TFEU). In the field of equal treatment, since 1971 the 
Court  of  Justice  has  delivered  more  than  two  hundred  binding  judgments,  sometimes 
providing far-reaching interpretations of relevant provisions, like the judgment in Defrenne II. 
Generally speaking, the CJEU has played, in particular through this preliminary procedure, a 
very  important  role  in  improving  the  ability  of  women  and  men  to  enforce  their  equality 
rights. 

Finally,  the  European  Commission  has  an  important  task  in  the  enforcement  of  EU 
gender equality law. The Commission monitors and analyses whether the Member States are 
fulfilling their obligations regarding the implementation of Treaty provisions and directives. 

108  In the Matter of Section 2 of the Summary Jurisdiction Act, 1857 as amended by Section 51 of the Courts 

(Supplemental Provisions) Act, 1961, the Equality Authority v Portmarnock Golf Club and Others and Robert 
C. Cuddy and David Keane, Ireland and the Attorney General [2005] IEHC 235. [2009] IESC 73.  

109  CNCD, Decision No. 489 of 21 November 2012. 
110  Since the date of the judgment, 8 April 1976, Case 43/75 Gabrielle Defrenne v Société anonyme belge de 

navigation aérienne Sabena [1976] ECR 455. 

111  Well-established case law since Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-

Westfalen [1984] ECR 1891 (Von Colson). 

34 

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The Commission may also initiate inquiries into specific problems in a certain Member State, 
either  on  its  own  initiative  or  on  the  basis  of  complaints  by  individuals  or  organisations, 
which can be submitted to the services of the Commission rather easily. The Commission has 
the power to bring a case before the CJEU. If the CJEU considers that the Member State has 
failed to fulfil an obligation under EU law (EU gender equality law included) and the Member 
State does not take the necessary measures to comply with the judgment of the CJEU within 
reasonable time, the State might even be subjected to penalties (Articles 258-260 TFEU). 

11.1. Judicial procedures 
Member  States  have  the  obligation  to  ensure  that  judicial  procedures  are  available  to  all 
persons who consider that they have been wronged by a failure to apply the principle of equal 
treatment to them, even after the relationship in which the discrimination is alleged to have 
occurred has ended. According to the CJEU’s case law, national courts must provide effective 
judicial  protection  and  access  to  the  judicial  process  must  be  guaranteed  (see  for  example 
Article  17(1)  of  Directive  2006/54/EC).112  In  practice  however,  in  many  countries  there  is 
little litigation on sex discrimination. This is often due to lengthy and costly procedures (e.g. 
Slovakia), and insufficient legal aid or costly legal services (e.g. Latvia). Fears of suffering 
career-based  disadvantages  or  facing  unemployment,  which  is  sharply  rising  in  some 
countries,  also  play  a  role  (e.g.  Greece,  Hungary).  Short  time  limits  might  also  hamper 
proper transposition of EU law (e.g. Latvia).  

In  a  number  of  countries  the  courts  charged  with  the  enforcement  of  equality  law  are 
specialised labour courts. For instance, there is the Industrial Disputes Court in Cyprus, the 
Equality Tribunal and the Labour Court in Ireland, special labour and social security courts 
in Poland, and Employment Tribunal in the United Kingdom. Normally the raison d’être of 
specialised  employment  tribunals  and/or  labour  courts  is  their  accessibility  for  employees, 
which is reflected among other things by the relative informality of the proceedings, their low 
costs, etc. Yet, even where they do exist, they do not have a monopoly over the enforcement 
of sex equality claims; civil and sometimes criminal courts may also be involved. 

The  main  feature  with  regard  to  courts  is  that  in  a  majority  of  the  countries  (e.g., 
Bulgaria,  Cyprus,  Finland,  Greece,  Germany,  Latvia,  Lithuania,  Luxembourg,  the 
former  Yugoslav  Republic  of  Macedonia,  the  Netherlands,  Poland,  Portugal  and 
Romania)  there  is  a  division  of  competence  between  civil  and  administrative  courts. 
Moreover,  in  many  countries  public  sector  employees,  particularly  civil  servants,  are  in  a 
special position and there may be special arrangements in the administration of justice, as in 
Malta. 

As far as criminal law is concerned, it would seem that the use of criminal law in labour 
law/gender equality matters is a sensitive issue, in particular for those Member States which 
prefer law enforcement through administrative and civil law channels (see also below, 11.2). 
However  in  Iceland,  cases  involving  violations  of  the  Gender  Equality  Act  are  handled  as 
criminal cases. 

Court  proceedings  in  general  and  particularly  discrimination  cases  are  a  stressful 
experience for the alleged victims of discrimination. Moreover, alleged victims are often in a 
dependent  and  therefore  vulnerable  position.  Taking  a  case  to  court  may  prove  to  be  very 
difficult, also from a financial point of view. Viewed from this perspective, organisations that 
act on behalf of the victim, or at least support her/him, may play a very important role. To this 
one  may  add  that  in  the  area  of  the  provision  of  goods  and  services,  due  to  the  specific 
difficulties  associated  with  individual  litigation  in  this  context,  such  as  low  sums  to  be 
recovered  against  high  costs,  action  by  organisations  is  crucial.113  For  these  reasons,  EU 
gender equality law provides that organisations and associations which have, in accordance 

112  Well-established case law ever since Case C-222/84 Marguerite Johnston v Chief Constable of the Royal 

Ulster Constabulary [1986] ECR I-01651.  

113  As for example Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil 

des ministres [2011] ECR I-773 (Test-Achats). 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

35 

 
 
 
 
 
                                                      
with the criteria laid down in national law, a legitimate interest in whether the provisions of 
the  equal  treatment  directives  are  complied  with,  may  act  before  the  courts.  Such 
organisations,  for  example  associations  for  women’s  rights  or  trade  unions,  may  engage, 
either on behalf or in support of the complainant, with his/her approval, in any judicial and/or 
administrative  procedure  provided  for  the  enforcement  of  the  obligations  under  the  equal 
treatment directives (see for example Article 17(2) of Directive 2006/54/EC). 
  Much depends on what national law provides. On the one hand, gender equality NGOs, 
similar associations and often also trade unions may  participate in and promote legal action 
for the defence of collective interests, even in the absence of a specific victim. For example in 
Iceland,  organisations  bring  actions  in  their  own  name  or  on  behalf  of  the  alleged  victim. 
Also  in  Belgium,  Bulgaria,  Croatia,  the  Czech  Republic,  Denmark,  France,  Greece, 
Italy,  Latvia,  Liechtenstein  Lithuania,  the  former  Yugoslav  Republic  of  Macedonia, 
Malta,  the  Netherlands,  Portugal,  Romania,114  Spain  and  Sweden  organisations  (and  in 
some countries trade unions, see e.g. Greece, Poland) may take action on certain conditions 
on behalf of the victims and, indeed, assist persons in court. In Italy, equality advisers may 
also assist victims or may act directly in their name in cases of collective discrimination, even 
where  the  employees  affected  by  discrimination  are  not  immediately  identifiable.  In 
Liechtenstein, no prior authorisation is necessary when the legal action aims at establishing 
that discrimination has taken place. On the contrary, in the United Kingdom, cases cannot be 
initiated  ‘on  behalf  of’  claimants,  but  organisations may  provide  support  in  proceedings.  In 
particular  trade  unions  often  are  responsible  for  supporting  cases  which  reach  the  courts 
(particularly in the area of equal pay).   

In  other  countries, like  Luxembourg,  ministerial  approval  is needed  in  order to  permit 
non-profit  organisations  to  litigate  on  behalf  of  victims.  In  Austria,  only  organisations 
mandated  by  legislation  may  support  victims  of  discrimination  in  court  cases  that  can  be 
subsumed into the labour dimension of the respective equal treatment legislation.  

In many countries, equality bodies may also act on behalf or at least in support of victims 

of discrimination (see below, in 11.5). 

On  the  other  hand,  in  some  countries,  like  Germany,  Slovenia  and  Turkey,  NGOs, 

interest groups and other legal entities have no standing before the courts. 

Court  proceedings  are  often  preceded  by  an  administrative  procedure  and  many  cases 
may already be resolved at that level, either, for instance, before an equality body (see below, 
in 11.5) or through labour inspectorates. For example in Poland, practice shows that conflicts 
can often be solved through direct contact between the Labour Inspectorate and the employer.  
Conciliation,  explicitly  referred  to  in  the  Recast  Directive  (see  Article  17(1)),  also 
precedes  court  proceedings.  In  a  number  of  States  conciliation  is  compulsory,  before 
proceedings are brought before certain courts, or only compulsory in certain types of disputes. 
In Liechtenstein, for example, conciliation is compulsory before proceedings can be brought 
before the courts. Even where it is not compulsory, conciliation may still play an important 
role. Mediation may play an important role as well (e.g. in Ireland) and is even required in 
Romania before an employee can submit a complaint to court or the equality body. The same 
applies in the area of goods and services. 

11.2. Remedies and sanctions  
Infringements of the prohibition of discrimination must be met by effective, proportionate and 
dissuasive sanctions, which might comprise the payment of compensation to the victim. 

These requirements were initially developed by the CJEU and only later laid down in EU 
discrimination  legislation  (see  in  particular  Articles  18  and  25  of  Recast  Directive 

114  However in Romania, this possibility has recently been limited in the Gender Equality Law to administrative 
procedures only. Given the unfortunate wording of Article 17(2) of the Recast Directive, concerning any 
judicial and/or administrative procedure, this would probably at first sight not constitute a breach of the 
Directive. However, such limitation seriously restricts the enforcement of sex equality law at which this 
provision aims. The Romanian Antidiscrimination Law prescribes that all groups exposed to discrimination 
may benefit from support in both administrative and court proceedings. 

36 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
                                                      
2006/54/EC  and  Articles  8  and  14  of  Directive  2004/113/EC).  Compensation  or  reparation 
has  to  be real,  effective  and  dissuasive.  Moreover, it has  to  be  proportionate  to the  damage 
suffered. The fixing of a prior upper limit may not, in principle, restrict such compensation or 
reparation. Similarly, national law may not exclude an award of interest.115 In view of these 
requirements,  a  compensation  rule  is  questionable  in  Belgium:  When  the  employer  fails  to 
reinstate the employee in the job or subject to previous conditions or in case of moral damage, 
the  standard  amount  of  fixed  compensation  is  six  month’s  pay,  a  sanction  that  the  national 
expert considers as non-deterrent. Rather low ceilings also exist for example in Malta. 

The  picture  in  the  Member  States  and  EEA  countries  concerning  the  issue  of remedies 
and  sanctions  varies  greatly.  The  sanctions  which  can  be  imposed  can  be  administrative, 
criminal  fines  or  even  imprisonment  (e.g.  Cyprus,  France,  Greece,  Latvia,  Lithuania, 
Malta and Poland), civil, disciplinary or any combination of these. Criminal sanctions have 
never been imposed in Latvia, and are hardly ever imposed in the Netherlands. 

The  reinstatement  of  the  employee  can  be  ordered  in  certain  types  of  proceedings  in  a 
number of countries, including Belgium (although courts refuse to give such orders, because 
in  an  unreasoned  judgment  of  20  June  1988  the  Court  of  Cassation  ruled  that  the  relevant 
legal provisions cannot entail the victim’s compulsory reinstatement), France, Ireland, Italy, 
Latvia,  Luxembourg  and  Turkey.  In  Greece  there  is  no  question  of  reinstatement,  as  the 
illegally dismissed employee retains his/her post; the dismissal is deemed never to have taken 
place.  Discriminatory  acts  are  null  and  void,  in  some  countries  ‘voidable’  or  they  can  be 
annulled  by  the  administrative  or  other  competent  courts  (e.g.  in  France,  Greece,  Ireland, 
Italy, Lithuania, the Netherlands and Spain). In Ireland, a wide range of orders for specific 
courses of action can be made by the courts – although with maximum awards – and also in 
Belgium the courts may issue injunctions to put an end to discrimination.  

Compensation  is  probably  the  most  common  form  of  remedy.  In  some  countries  –  for 
instance Liechtenstein and Slovenia (for applicants in the public sector) – limits are imposed 
on the amount of compensation which can be awarded for a refusal to appoint someone to a 
particular post. The limits to compensation in relation to other situations that existed in the 
United Kingdom have been abolished as a result of litigation before the CJEU. In Finland, 
the maximum compensation in cases concerning access to employment was capped at EUR 
16 210  for  all  candidates  that  have  been  discriminated  against,  but  this  maximum  was 
removed in 2009. No maximum was set for other situations where discrimination takes place. 
The  real  issue  with  compensation,  however,  is  not  so  much  the  existence  of  an  upper 
limit, but rather the non-existence of a minimum amount. In some countries such a minimum 
does  exist,  like  in  Poland,  where  there  is  a  minimum  which  is  related  to  a  minimum 
remuneration to be established on the basis of specific rules. More generally it would seem 
that in some countries the problem is not so much the non-existence of effective sanctions and 
remedies,  but  rather  the  unwillingness  of  the  courts  to  grant  such  remedies  or  impose  such 
sanctions  (e.g.  Bulgaria).  This  is  in  fact  the  background  to  a  new  type  of  indemnity 
introduced  in  Sweden.  This  discrimination  indemnity  is  exclusive  for  discrimination  and 
should compensate for the very fact that the indemnities awarded by the courts are not very 
effective.  

In some States, an extra requirement of ‘intent’ is imposed for certain remedies, which is 
difficult to reconcile with EU law standards. For instance, in Finland, when relying on tort 
law, it is required that the defendant has acted intentionally. In Germany also a requirement 
of fault, intent or gross negligence is imposed in certain circumstances. 

As the examples of pre-existing limits on compensation in the United Kingdom show, 
individual litigation can have an effect beyond the individual case. In this country changes in 
the  legislation  resulted  from  challenges  brought  by  individual  applicants.  Successfully 
challenging the conformity of national legislation with EU law means that conflicting national 

115  See for example Case C-271/92 M. Helen Marshall v Southampton and South-West Hampshire Area Health 

Authority [1993] ECR I-4397 (Marshall II) and Case C-180/95 Nils Draehmpaehl v Urania Immobilienservice 
OHG [1997] ECR I-2195 (Draehmpaehl). 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

37 

 
 
 
 
 
 
                                                      
law  cannot  be  applied  and  should  bring  about  an  amendment  of  that  legislation,  but  in  this 
area the impact has been striking. 

The  above  examples  also  illustrate  another  problem.  By  its  very  nature,  the  remedy 
awarded  or  the  sanction  imposed,  just  like  equality  litigation  in  general,  will  often  remain 
limited  to  the  individual  case.  In  many  cases  a  finding  that  an  employer  has  been 
discriminating against an employee does not guarantee that the practice will change. Another 
employee may be obliged to start his/her own legal proceedings. An exception may indeed be 
when  the  discrimination  lies  in  national  legislation  or  in  a  collective  agreement  and  the 
litigation  has  the  effect  that  these  are  amended.  As  to  the  amendment  of  collective 
agreements,  it  must  be  pointed  out,  however,  that  much  depends  on  the  willingness  of  the 
trade unions to renegotiate. As gender equality is often not a leading priority of the unions, 
discriminatory  provisions  may  continue  to  exist  for  a  long  time.  One  of  the  possible 
mitigating factors is greater standing for NGOs and other interest organisations, which may 
bring actions in the general interest, discussed briefly above. 

11.3. Victimisation 
As  a  matter  of  EU  gender  equality  law,  persons  who  have  made  a  complaint  or  instigated 
legal proceedings aimed at enforcing compliance with the principle of equal treatment have to 
be  protected  against  dismissal  or  any  adverse  treatment  or  consequence  in  reaction  to  their 
action (see Article 24 of Directive 2006/54/EC and Article 10 of Directive 2004/113/EC).  

These provisions have been transposed on a satisfactory basis in most of the countries, in 
particular in the field of employment. In Croatia for example, legislation provides protection 
in  a  detailed  manner,  specifically  mentioning  reporting  and  witnessing  discrimination, 
refusing to comply with the discriminatory order or participating in any other proceedings in 
connection with discrimination. Indeed, in most countries witnesses of discrimination are also 
protected against victimisation. In France, the provision on victimisation also applies to the 
public  sector  since  2008.  The  Gender  Equality  Law  of  Romania  does  not  contain  any 
provisions  regarding  victimisation,  but  in  a  recent  case  of  sexual  harassment  a  general 
provision  against  victimisation  has  been  applied  by  the  Equality  Body.  In  practice,  fear  for 
victimisation  is  often  a  reason  for  victims  of  discrimination  not  to  start  proceedings,  in 
particular in existing employment relations. 

11.4. Burden of proof 
As  a  result  of  difficulties which  are  inherent in  proving  discrimination,  EU  gender  equality 
law  provides  for  a  shift  in  the  burden  of  proof.  An  alleged  victim  of  discrimination  has  to 
establish, before a court or other competent authority, facts from which it may be presumed 
that there has been direct or indirect discrimination. It is, however, for the respondent to prove 
that  there  has  been  no  breach  of  the  principle  of  equal  treatment.  If  the  Member  States  so 
wish, they may introduce more favourable rules for claimants. These rules also apply in the 
area of goods and services, but do not apply in criminal proceedings (see Article 19 of Recast 
Directive 2006/54/EC and Article 9 of Directive 2004/113/EC). Again, various aspects of this 
law of evidence in discrimination cases were initially developed by the Court of Justice and 
only later laid down in legislation. 

In  all  Member  States  and  the  EEA  countries,  a  shift  in  the  burden  of  proof  is 
implemented  in  national  law.  This  holds  true  for  civil  law  and  labour  law  in  particular. 
However,  in  Slovakia,  it  is  not  implemented  in  civil  procedure  law,  but  only  in  the  Anti-
Discrimination Act and in practice often not applied by national courts in anti-discrimination 
cases.  The  shift  in  the  burden  of  proof  generally  does  not  apply  in  criminal  law  and 
sometimes not in administrative proceedings either (e.g. Lithuania). The latter may, however, 
be questionable under EU gender equality law. The burden of proof provision to be applied in 
anti-discrimination cases in Bulgaria requires that a presumed victim of discrimination has to 
prove  (not  only  establish)  facts  from  which  it  may  be  presumed  that  there  has  been 
discrimination, a definition which gives rise to problems in practice. In Poland, some courts 
require  that  the  employee  establishes  which  particular  discriminatory  criterion  has  been 
applied by the employer, a requirement which is questionable under EU law. In Portugal, the 

38 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
shift  in  the  burden  of  proof  does  not  apply  to  harassment  practices.  In  Romania,  the 
definitions in the Gender Equality Law and the Goods and Service Law are not clear, and they 
therefore do not correctly transpose the EU provisions.  

It  is  still  often  very  difficult  to  establish  even  a  presumption  of  discrimination  as  the 
necessary data are often not readily available, in particular in the field of pay. Measures which 
facilitate  the  access  to  data  exist  in  Italy:  Here,  companies  with  more  than  one  hundred 
employees  must  draw  up,  every  two  years,  a  report  on  the  workers’  situation  (male  and 
female)  in  relation  to  recruitment,  professional  training,  career  opportunities,  remuneration, 
dismissal  and  retirement.  In  contrast,  in  Germany,  the  Federal  Labour  Court  has  clearly 
restricted  the  usability  of  statistical  data  as  prima  facie  evidence  of  discrimination.116 
However, such a view is, in turn, difficult to reconcile with the well-established case law of 
the CJEU.117  

As regards the proof that the defendant has to provide, it might be questioned whether the 
Austrian rule requiring evidence that it is less probable that the decision under dispute was 
based on the sex of the person meets the requirements of EU law. 

Finally, another problem has arisen in Greece. The EU rules on the burden of proof as 
well as those on the standing of organisations and trade unions have been transposed in that 
country, although only by special legislation implementing the directives. They have not been 
included in the Codes of Civil and Administrative Procedure, which means that the rules are, 
in practical terms, almost unknown. 

11.5. Equality bodies 
Since  2002,  by  virtue  of  Directive  2002/73/EC,  the  Member  States  and  EEA  countries  are 
obliged  to  designate  equality  bodies.  The  tasks  of  these  bodies  are  the  promotion,  analysis, 
monitoring and support of equal treatment of all persons without discrimination on grounds of 
sex. They may form part of agencies with responsibilities at the national level for defending 
human  rights  or  safeguarding  individual  rights.  These  bodies  must  have  the  competence  to 
provide  independent  assistance  to  victims  of  gender  discrimination,  to  conduct  independent 
surveys  concerning  gender  discrimination  and  to  publish  independent  reports  and  make 
recommendations (see Article 20 of Recast Directive 2006/54/EC and Article 12 of Directive 
2004/113/EC).118 Some engage in addition in strategic litigation (e.g. Estonia). 

In  order  to  meet  these  obligations,  a  number  of  States,  such  as  Denmark  (in  2011), 
Malta  and  Spain,  have  designated  a  gender  equality  body.  Some  States,  such  as  the 
Netherlands, Portugal,  Sweden,  or the  United Kingdom,  already  had  a  working  (gender) 
equality body which adequately implemented Directive 2002/73/EC. Turkey has no equality 
body yet, but does have an Ombudsman.  

Other States have established an equality body, not in accordance with the standards and 
obligations  laid  down  in  Directive  2002/73  but  in  response  to  international  human  rights 
agreements. As a result the bodies in question do not specifically and exclusively address the 
issue  of  gender  equality  in  the  light  of  EU  law.  Instead,  these  bodies  adopt  a  more  general 
human rights approach to gender equality (e.g. recently in the Netherlands). Interestingly, in 
the  United  Kingdom  the  opposite  position  has  been  adopted:  the  mandate  of  the  equality 
body  has  been  broadened  and  the  Equality  and  Human  Rights  Commission  now  also 
addresses human rights issues. 

A  new  development  is  that  gender  equality  bodies  are  incorporated  into  a  ‘multiple 
grounds’ equality body, insofar as they were not part of such a more encompassing body from 
the very beginning. Thus, for instance, the equality bodies in Bulgaria, France, Germany, 

116  Federal Labour Court, judgment of 22 July 2010, 8 AZR 1012/08. 
117  See Case C-127/92 Dr Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for Health 
[1993] ECR I-05535 (Enderby) and Case C-167/97 Regina v Secretary of State for Employment, ex parte 
Nicole Seymour-Smith and Laura Perez [1999] ECR I-00623 (Seymour). 

118  On equality bodies in general see R. Holtmaat Catalyst for Change: Equality Bodies according to Directive 
2000/43/EC 2007, available at http://www.migpolgroup.com/publications_detail.php?id=159, accessed 
31 October 2013. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

39 

 
 
 
 
 
 
 
                                                      
Ireland, the Netherlands, Lithuania, Luxembourg and Slovenia deal with a multiplicity of 
grounds  of  discrimination  in  transposition  of  all  non-discrimination  directives.119  Also 
Sweden has recently set up a ‘multiple grounds’ Equality Ombudsman. 

One of the major concerns in relation to equality bodies is indeed the independence of the 
bodies or at least their capacity to perform their tasks independently. Much here depends on, 
inter alia, the procedures for appointing the staff of the bodies, their autonomy vis-à-vis the 
Government,  their  mandate,  their investigative  powers  and, last  but  not  least,  their funding. 
For example Italy has various bodies that could qualify as equality bodies under EU law, but 
it  is  not  entirely  clear  to  what  extent they  satisfy  the  EU  requirements,  in  particular  that  of 
operating  independently.  In  Romania,  the  equality  body  was  closed  down  a  few  years  ago 
and  only  some  of  its competences  have  been  taken over  by  the  Ministry  of  Labour,  Family 
and  Social  Protection.  Such  alternative  does  not  fulfil  the  requirements of independence.  In 
Slovenia, the Service for Equal Opportunities operates within the Ministry of Labour, Family 
and Social Affairs and is not independent. In Spain, the Women’s Institute is part of Spain’s 
central Government, subject to the principle of administrative hierarchy; so its independence 
is not really guaranteed. 

Another  matter  of  concern  is  that  where  equality  bodies  deal  with  multiple  grounds  of 
discrimination,  there  are  fears  that  this  might  lead  to  gender  discrimination  being 
marginalised.120 

The  purposes  of  the  equality  bodies  are  multiple.  Similarly,  their  competences  often 
differ in accordance with their purpose. Very generally speaking, almost all equality bodies 
have  been  established  to  monitor  national  legislation  and  measures  and  to  evaluate  the 
implementation  of  equal  treatment  and  non-discrimination.  Most  equality  bodies  have  a 
responsibility to promote gender equality and conduct research in that area. Most of them may 
also  assist  victims  of  discrimination  by  providing  advice,  information  etc.  In  addition, 
however,  competences  exist  which  go  beyond  what  the  directives  require  but  which  are  of 
great importance for the enforcement of gender equality law. 

First, some equality bodies have the authority to hear complaints on gender equality and, 
in some cases, to give a non-binding opinion. This is the case in, for instance, in Austria, the 
Czech  Republic,  Denmark,  Estonia,  France,  Greece,  Iceland,  Lithuania,  the  former 
Yugoslav Republic of Macedonia, Malta, the Netherlands, Norway, Spain, Sweden and 
the  United  Kingdom.  In  Cyprus,  gender  equality  decisions  are  binding  on  both the public 
authorities  and  between  the  relevant  parties.  In  Bulgaria,  the  equality  body  issues  binding 
decisions.  In  Bulgaria,  Hungary  and  Iceland  the  equality  body  may  impose  fines  and  the 
Lithuanian  authority  may  impose  administrative  sanctions.  The  Irish  Equality  Authority 
may issue non-discrimination notices; a sort of binding indication concerning the steps which 
have  to  be  taken.  The  Authority  may  also  refer  a  case  to  the  Equality  Tribunal  or  the 
appropriate court. 

Second,  some  of  the  equality  bodies  may  challenge  discrimination  in  court,  often  on 
behalf  of  a  particular  victim  and  sometimes  even  without  an  actual  victim.  They  may 
sometimes do so on their own initiative and in the general interest. For instance, in Belgium, 
Bulgaria,  and  Spain,  equality  bodies  have  standing  to  litigate,  and  in  Latvia  the  equality 
body can act as the legal representative of a victim. In the United Kingdom, the Equality and 
Human Rights Commission cannot act on behalf of victims in the ordinary courts, although it 
can  assist  individuals  in  bringing  claims  and  intervene  in  proceedings.  Malta’s  National 

119  Thus also including the ‘non-gender’ directives. See Council Directive 2000/43/EC of 29 June 2000 

implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 
19.7.2000, p. 22 and Council Directive 2000/78/EC of 27 November 2000 establishing a legal framework for 
equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16. 

120  See on this aspect K. Nousiainen ‘Unification (or not) of Equality Bodies and Legislation’, European Gender 
Equality Law Review no. 2/2008 pp. 24-33, available at http://ec.europa.eu/justice/gender-equality/document/
index_en.htm#h2-9, accessed 31 October 2013. 

40 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
                                                      
Commission  for  the  Promotion  of  Equality  and  Sweden’s  Equality  Ombudsman  can  only 
litigate with the victim’s approval. 

11.6. The role of the social partners 
Increasingly, the social partners, alongside NGOs and other stakeholders, are also called upon 
to play a part in the realisation of gender equality. Member States and the EEA countries have 
the obligation to promote social dialogue between the social partners with a view to fostering 
equal treatment. This dialogue may include the monitoring of gender equality practices at the 
workplace,  promoting  flexible  working  arrangements,  with  the  aim  of  facilitating  the 
reconciliation  of  work  and  private  life,  as  well  as  the  monitoring  of  collective  agreements, 
codes of conduct, research or exchange of experience and good practice in the area of gender 
equality. Similarly, the States are required to encourage employers to promote equal treatment 
in a planned and systematic way and to provide, at appropriate regular intervals, employees 
and/or  their  representatives  with  appropriate  information  on  equal  treatment.  Such 
information may include an overview of the proportion of men and women at different levels 
of  the  organisation,  their  pay  and  pay  differentials,  and  possible  measures  to  improve  the 
situation in cooperation with employees’ representatives (see in particular Articles 21 and 22 
of Recast Directive 2006/54/EC and Article 11 of Directive 2004/113/EC). 
  Within  the  Member  States  and  EEA  countries,  there  is  a  contrast  between  the  role  of 
social  partners  in  relation  to  gender  equality  and  the  enforcement  of  gender  equality.  The 
important role played by collective agreements and the role of the social partners appears to 
be a source of concern as they often give little priority to gender equality and sometimes even 
contain  discriminatory  provisions (e.g.  Croatia). The  same  holds  true for the  more  specific 
issues of pregnancy, maternity, parental and paternity rights. Often the strength and resolution 
of the unions in negotiating different working conditions is lacking. The fact that the social 
partners in general are male-dominated might indeed have an influence (e.g. Germany). 

On  the  other  hand,  where  the  social  partners  take  an  interest  this  can  have  some  real 
impact. For instance, in Denmark, most of the EU-driven litigation has been brought by trade 
unions.  In  other  countries  they  provide  free  legal  counselling  to  their  members.  In  some 
countries the social partners have been pioneers in developing better and longer family-related 
forms of leave (e.g. France, Sweden). It is indeed rather common for collective agreements 
to guarantee longer and better-paid maternity, parental and paternity leave. Similarly, in the 
Netherlands, social partners play an important role and collective agreements often contain 
supplementary rights to childcare facilities and care leave.  

Furthermore,  the  social  partners  play  a  role  in  the  area  of  equal  pay.  As  was  already 
pointed  out  above  (Section  4.3.),  France  imposes  the  obligation  to  negotiate  every  year  on 
equality  and  on  the  gender  pay  gap.  Since  2004,  important  inter-professional  national 
agreements  aimed  at  promoting  professional  equality  between  men  and  women  have  been 
agreed  on.  In  Liechtenstein,  many  collective  agreements  contain  clauses  on  equal 
opportunities  between  men  and  women,  including  equal  pay.  The  Swedish  collective 
agreements often address gender equality in relation to wage setting and extra wages during 
parental leave. Also in Spain the social partners are under the general obligation to negotiate, 
in  collective  agreements,  measures  promoting  equal  treatment  and  opportunities  or  equality 
plans.  In  Greece,  collective  agreements  have  indeed  often  improved  maternity  and 
parenthood  protection.  However,  since  2010,  the  collective  agreements  system  –  which 
functioned  as  a  safety  net  –  has  been  extensively  amended.  One  of  the  consequences  is  a 
sharp decrease in wages, as minimum wages are now fixed by law at lower levels than those 
fixed by collective agreements.  

In Austria, further measures taken at national level include the recently institutionalised 
annual  dialogue  of  the  Federal  Chancellor  with  the  relevant  NGOs  and  the  monitoring  by 
Parliament of government reports. In this country, the social partners may also bring a special 
case  before  the  Supreme  Court  to  request  a  declaratory  judgment  on  the  existence  or  non-
existence of certain rights which may include equality rights.  

Finally,  in  Portugal,  the  Labour  Code  establishes  a  system  for  an  assessment  of  the 
content of collective agreements by the CITE (Comissão Para a Igualdade no Trabalho e no 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

41 

 
 
 
 
 
Emprego,  a  public  body  which  deals  with  gender  equality  issues  specifically  in  the  area  of 
work and employment), to be carried out during the first 30 days after the publication of these 
agreements  and  designed  to  check  them  for  possible  discriminatory  clauses  and  to  promote 
the elimination of such clauses by the courts. 

12. Winding up: law in the books and law in practice 

What conclusions can be drawn from the general overview, giving an overall impression of 
how the EU rules on gender equality have been transposed in the EU Member States and EEA 
countries? The most important one is probably that most of these rules have been transposed 
into  national  law  in  a satisfactory  manner. The  realisation  of  the equal treatment  of  women 
and men is certainly not only an achievement of the EU. On the one hand, at the national level 
the respective States may always adopt measures that are better and that go further, since, in 
this area, EU law lays down minimum requirements only. On the other hand, it should also be 
stressed  that,  in  many  respects,  EU  rules  and  case  law  have  provided  a  crucial  impetus  for 
gender discrimination law in the Member States and the EEA countries. 

However, a correct transposition of the EU rules into national law is not enough. As has 
already been observed here and there in the overview, what also matters is that the transposed 
rules  are  applied  in  everyday  life  and  are  effectively  enforced  through  the  appropriate 
mechanisms,  like  labour  inspectorates,  equality  bodies  and,  where  necessary,  the  courts.  In 
other words, law in the books must also be law in everyday practice. Unfortunately the law in 
the books and the law in practice still differ, sometimes dramatically.  

One  of  the  basic  preconditions  in  this  respect  is  that  not  only  lawyers  and  judges 
familiarise  themselves  with  EU  gender  equality  law.  Last  but  not  least,  the  broader  public 
must be aware of their rights under EU law. The present publication is a discrete contribution 
to that effect.   

42 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
Part II 

National Law: 
Reports from the Experts of the Member States,  
EEA Countries, Croatia, FYR of Macedonia and Turkey 

AUSTRIA – Martina Thomasberger 

1. Implementation of central concepts 

On the basis of the general constitutional concept of equality, equal treatment legislation for 
the private and the agricultural as well as for the public sector has transposed the concepts of 
discrimination,  indirect  discrimination,  sex-related  harassment  and  sexual  harassment, 
including the instruction to discriminate, discrimination by association and victimisation. The 
Equal  Treatment  Act  of  1978  was  recast  in  2004  in  order  to  cover  all  aspects  of  the  EU 
Directive concerning gender equality and anti-discrimination matters. It provides for bans of 
discrimination  within  the meaning  just  mentioned, applying  to the  essential  areas  of  private 
employment and to the access to and supply of goods and services as described below. Also, 
in  2013 the  Equal Treatment  Act  was  amended  because  of the implementation  of  Directive 
2010/41  and  now  includes  a  reference  to  equality  measures  for  self-employed  persons  in 
Paragraph 4. The Equal Treatment Act outlines the same anti-discriminatory principles to be 
further implemented, according to the Constitution of the federal State, by the legislation of 
the  nine  provinces (Laender)  on  agri-  and  silvicultural  employment.  The  Federal Treatment 
Act  of  1993  applies  to  the  public  sector,  i.e.  to  federal  civil  servants  and  contractual 
employees  (Vertragsbedienstete);  the  antidiscriminatory  legislation  applying  to  the  public 
employees  of  the  Laender,  comprising  more  than  20  statutes,  is  moulded  along  the  same 
principles. The explicit inclusion of the ‘circumstance of having a child’, meaning biological, 
adoptive  or  foster  parenthood  and  the  obligations  implied,  gives  the  definition  of  indirect 
discrimination  in  the  private  sector  an  additional  perspective.  Most  of  the  concepts  of 
discrimination  mentioned  have  been  applied  in  cases  particularly  of  the  highest  judicial 
instances, namely the Constitutional Court, the Supreme Court and the High Administrative 
Court, and furthermore by the equality bodies. The commitment of state activity at all levels 
to the constitutional aim of de facto equality, implemented inter alia by gender budgeting and 
mandatory  positive  action  in  the  public  sector,  exceeds  the  requirements  of  EU  law.  The 
transposition of the central concepts is certainly satisfactory.  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
Transposing  equal  pay  legislation  applies  to  any  kind  of  employment  relationship  with  a 
private  or  public  employer,  including  apprentices  and  trainees.  In  the  private  sector 
homeworkers, employees who are posted by businesses that do not have a seat in Austria and 
employee-like  persons  are  explicitly  included,  whereas  legislation  in  the  public  sector 
explicitly  includes  persons  with  a  free  employment  contract.  To  explain  this  somewhat 
complicated  definition  of  the  personal  scopes  of  Austrian  equal  treatment  legislation,  or  at 
least one of its aspects, it should be pointed out that there is a basic distinction in the Civil 
Code  between  employment  (labour)  relationships  on  the  one  hand,  and  work  contracts 
(Werkverträge) on the other. If a person commits herself/himself to ‘services’ (Dienstleistung) 
for  another  party  during  a  certain  period,  this  constitutes  an  employment  (labour)  contract, 
whereas producing a certain achievement for remuneration is agreed under a work contract. 
However, the relevant and intentionally flexible provision of the Civil Code lacks precision, 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

43 

 
 
 
 
 
 
 
since it fails to define ‘services’. It has been up to the courts and to legal scholars to develop 
decisive  criteria,  now  considering  personal  dependency  as  the  essential  criterion  of  an 
employment  relationship.  If  there  is  no  personal  dependency,  the  Austrian  legal  system 
assumes  a  so-called  free  service  contract  (freier  Dienstvertrag),  an  ‘in-between’  category 
regrettably not mentioned in the Civil Code. For the purposes of social security and tax law, 
persons  with  a  free  service  contract  or  ‘free  employees’  are  considered  self-employed.  The 
General  Social  Security  Act,  applying  essentially  to  workers,  introduced  a  further  ‘in-
between’  category.  Accordingly,  ‘employee-like  persons’  (dienstnehmerähnliche  Personen), 
are defined as those free service contractees who are economically dependent and obliged to 
perform  services  essentially  in  person  without  equipment  of  their  own,  meaning  that  some 
elements of personal and economic dependency prevail over the criteria of self-employment; 
without  being  wholly  dependent  workers/employees,  they  are  still  subject  to  the  workers’ 
regime  of  mandatory  insurance  including  sickness,  invalidity  and  old  age  as  well  as,  with 
some modifications, maternity benefits, retirement, disability and unemployment benefits, and 
health insurance that also covers maternity benefits.1  

Legislation  does  not  define  pay.  However,  the  courts  and  legal  scholars  traditionally 
developed  a  wide  concept  of  pay  that  meets  EU  law.  Equal  treatment  legislation  explicitly 
prohibits pay discrimination and, in the private sector, defines work of equal value insofar as 
it  bans  criteria used in job  classification systems  and  in  collective  agreements which  assess 
the  work  of  women  and  the  work  of  men  in  such  a  way  that  it  results  in  discrimination. 
Contravening  collective  agreements  are  null  and  void,  as  first  confirmed  by  the  Supreme 
Court in 1994.2  In conformity with EU law and the Austrian Constitution, case law considers 
qualification and to some extent also seniority as an acceptable criterion for different wages. 
Wage transparency measures, not explicitly required by Directive 2006/54/EC but allowed as 
additional  means,  were  introduced  by  legislation  in  2011.  Firstly,  job  advertisements  for 
private  employment  have  to  be  transparent  by  indicating  the  relevant  minimum  wage. 
Secondly,  private  enterprises  with  more  than  150  employees  have  to  establish  biannual 
aggregations  of  anonymous  data  in  a  three-part  structure  defined  by  legislation  for  the 
restricted  information  of  the  works’  council  and  the  staff;  these  ‘income  reports’  aim  at 
offering a gendered comparison of the job classifications applied and the wages actually paid, 
in  an  easily  accessible  overview.  The  salaries  of  civil  servants  are  governed  by  legislation 
which  formally  does  not  contain  gender-specific  differences.  However,  biannual  income 
reports for the public sector to be presented to Parliament were also introduced in 2011. Equal 
pay legislation is in conformity with EU law.  

2.2. Access to work and working conditions 
The personal scope of relevant legislation is the same as described for equal pay. However, as 
the  definition  of  the  substantial  scope  refers  to  the  ‘world  of  work’  in  general,  additional 
aspects apply. The ‘world of work’ includes all forms and levels of occupational counselling, 
training  and  re-training  measures  for  their  full  duration  as  well  as  the  membership  of 
workers’,  employers’  or  other  specific  professional  organisations  and  the  access  to  the 
benefits or services provided by them. Furthermore, the world of work includes the founding, 
establishing or extending of an enterprise, as well as taking up or expanding any other form of 
self-employed  activity.  With  respect  to  employment  relationships,  the  prohibitions  of 
discrimination  are  worded as  general  clauses  in  order  to  ensure  a  broad  interpretation to  be 
followed  by  open-ended  enumerations  including  –  in  addition  to  pay  and  other  employers’ 
benefits  not  to  be  considered  pay  such  as  access  to  sport  facilities  -  the  conclusion  and 
termination  of  the  employment  relationship,  training  within  the  organisation,  career 
advancement  and  other  working  conditions.  Specific  provisions  apply  to  discrimination  by 

1   See for this and for further references, N. Bei ‘Austria’ in the European Network of Legal Experts in the Field 
of Gender Equality, M. Freedland and N. Countouris, The Personal Scope of the EU Sex Equality Directives, 
pp. 19-22, 27, The European Commission, 2012,  available at http://ec.europa.eu/justice/gender-equality/
files/your_rights/personal_scope_eu_sex_equality_directive_final_en.pdf, accessed 22 October 2013. 

2   OGH 14.9.1994, 9 Ob A 801/94.  

44 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
                                                      
sexual  and  sex-related  harassment  including  the  instruction  to  discriminate,  and  to  job 
vacancies in the private sector, allowing gendered advertisements only if the worker’s sex is 
indispensable for performing the work or service advertised. Comprehensive case law applies. 
Exceeding  the  requirements  of  Directive  2006/54/EC,  in  the  public  sector  the  preferential 
treatment  of  women  who  are  as  qualified  as  the  best  male  applicant  is  obligatory  in 
accordance  with  the  quotas  set  by  Affirmative  Action  Plans  for  recruitment,  career 
advancement and for training measures; breach of this obligation amounts to discrimination. 
This  principle  has  been  applied  by  the  competent  equality  body  as  well  as  in  case  law, 
particularly that of the High Administrative Court. Transposition is satisfactory. 

2.3. Occupational pension schemes 
There  has  been  no  specific  transposition  by  amendments  to  the  pertinent  legislation  which, 
within  the  broadly  defined  scope  of  employment  relationships  ‘based  on  civil  law’,  covers 
employers’  pledges  and  employees’  prospective  entitlements  in  an  occupational  social 
security  scheme  as  regards  e.g.  invalidity  or  an  occupational  pension  scheme,  the  latter 
complementing  statutory  pension  schemes  including  surviving  dependants’  pensions. 
Occupational  pension  schemes  are  typically  based  on  collective  agreements  at  sector  or 
enterprise  level.  Legislation  addresses  the  employer  and  states  the  principle  of  non-
discrimination but in a general way, prohibiting arbitrary criteria. The Supreme Court’s case 
law  as  well  as  the  competent  equality  body’s  practice  have  clarified  and  confirmed  that, 
notwithstanding  the  lack  of  an  explicit  rule  on  the  equal  treatment  of  women  and  men, 
benefits based on an occupational social security scheme were to be considered pay to which 
equal treatment legislation for the private sector applies.3 Not taking into account periods of 
occupation  merely  due  to  women’s  lower  statutory  retirement  age  constitutes  direct  sex 
discrimination.4 Specific regulations apply to pensions of civil servants, female and male civil 
servants paying the same contributions and retiring at the same age. Pension entitlements can 
be  accrued  during  child-raising  periods  subject  to  the  condition  that  the  child  has  been 
brought up by the civil servant as the main carer for a maximum period of 48 months. This 
appears  to  surpass  the  minimum  requirements  of  the  Directive.  Transposition  is  therefore 
satisfactory. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The relevant Maternity Protection Act, providing essentially for pregnant workers’ protection 
against dismissal and their occupational health and safety, has a wide scope covering all kinds 
of workers in the private sector and homeworkers, but not employee-like persons (see 2.1.); 
modifications apply to public employees and domestic workers. Related legislation applies to 
the agri- and silvicultural sector. Legislation, however, does not define ‘pregnant worker’ nor 
‘pregnancy’,  but  a  definition  is  offered  in  the  case  law  of  the  Supreme  Court.5  Also,  no 
definition is included of breastfeeding, to which no legal time limit applies. Pregnant workers 
are  protected  against  notice  and  dismissal  once  the  pregnancy  is  known  to  the  employer; 
fixed-term  contracts  are  extended  by  law  until  the  maternity  leave  begins.  Comprehensive 
case  law  applies.  In  any  event,  workers  are  not  allowed  to  work  in  the  8  weeks  before  the 
calculated date of birth and for 8 weeks after having given birth (12 weeks in special cases 
such  as  multiple  birth  or  caesarean  section),  which  means  that  the  regular  duration  of 
maternity leave exceeds Article 8 of Directive 92/85/EEC. Maternity benefits are paid by the 
mandatory  social  security  health  insurance  schemes.  Entitlement  to  maternity  benefits 
requires inclusion in the mandatory schemes, which depends upon receiving regular earnings 
above the statutory social security threshold (for employees in 2015: EUR 405.98 per month). 

3   OGH 19.3.1985, 4 Ob 31/85.  
4   OGH 23.4.2003, 9 ObA 256/02s, directly applying Article 141Treaty Establishing the European Community.  
5   12.4.1995, 9 ObA 23/95 and 16.6.2008, 8 ObA 27/08s. These are in accordance with the CJEU in Case 

C-506/06 Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] ECR I-01017 (for in-vitro-
fertilisation). 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

45 

 
 
 
                                                      
Employee-like  persons,  persons  with  free  service  contracts  and  self-employed  persons  are 
entitled  to  analogous  benefits  according  to  the  applicable  social  security  regime.  Workers 
with  earnings  below  the  social  insurance  threshold  can  opt  into  a  voluntary  insurance 
coverage, which entitles them to basic maternity benefits of € 8.85 per day. The legal social 
security  schemes  for  self-employed  persons  and  for  self-employed  farmers  also  include 
maternity  benefit  provisions.  Under  both  regimes,  women  are  entitled  to  hire  a  trained 
replacement to help them carry on their business during maternity protection periods. If this is 
not  feasible,  they  receive  a  financial  benefit  of  €  51,20  per  day.  Parental  leave  including 
parental  part-time  leave  for  mothers  is  provided  for  by  the  Maternity  Protection  Act,  for 
fathers by the Fathers’ Leave Act. During parental leave, the employment contract as such is 
not  interrupted,  but  the  essential  obligations  which  arise  therefrom  –  work  and  pay  –  are 
suspended until the contract recovers after the ending of parental leave. Each parent can take 
up parental leave until the child is 2 years of age, various models of dividing parental leave 
between  the  parents  as  well  as  of  combining  parental  leave  with  parental  part-time  leave 
apply.  Parental  leave  can be  extended by  agreement with the  employer  until  the  child  is  30 
months  old,  but  dismissal protection is  granted  only  for  a period  of  4  weeks  after the child 
reaches  the  age  of  two.  The  individual  entitlement  of  fathers  is  explicitly  provided  for. 
Mothers and  fathers  are  entitled  to  postpone three  months  of  their  respective  parental  leave 
until  the  child  is  seven  years  old.  The  principles  described  also  apply  to  adoption, 
commencing on the date of the child’s adoption, and to foster parents in the private as well as 
in  the  public  sector.  The  Child  Care  Allowance  Act  provides  for  childcare  benefits  for  all 
parents  in  5  alternative  forms,  regardless  of  their  prior  social  security  status.  While  the 
legislation described essentially conforms with or even exceeds EU law, the personal scope of 
maternity  protection  legislation  leaves  employee-like  persons  unprotected  in  the  area  of 
occupational health and safety as well as against termination of their contract; they may fight 
the latter, however, as discriminatory under equal treatment legislation.  

4. Statutory schemes of social security 

The  regular  mandatory  and  contributions-based  statutory  regimes  of  social  security  are 
complex, each being applicable to a certain group of persons, notably workers and employees, 
employee-like persons, persons engaged in trade and commerce, other self-employed persons, 
furthermore self-employed persons as well as workers and employees in agri- and silviculture, 
and finally to specific groups of free professionals. Minimum thresholds apply. The different 
statutory  schemes  mentioned  provide  coverage  for  health,  occupational  accidents  and 
illnesses, retirement and disability benefits. Widows’ and widowers’ pensions are granted if 
the spouse was validly  married at the time of the death of the insured person or, in case of 
divorce,  if  he/she  received  maintenance  payments  from  the  insured  person  at  the  time  of 
his/her death. In 2005 a major pension reform went into effect with the implementation of the 
General  Pensions  Act.  Its  scope covers all  persons  born  since  1 January  2005. Its  aim  is  to 
include the complete workforce after a transition period and to give them access to a publicly 
maintained  ‘Pensions  Account’,  which  presents  a  transparent  statement  of  all  accumulated 
pension entitlements and their future development. Originally, the standard retirement age in 
Austria was 65 for men and 60 for women. The Constitutional Court having considered the 
different pension age for women and men unconstitutional in 1990, legislation provided for a 
step-by-step system gradually adapting women’s regular statutory age of retirement to that of 
men.6 The transition period for equalising the standard retirement age will be from 2024 to 
2033. Pension entitlements can be accrued during child-raising periods equally by women and 
men subject to the condition that the child has been brought up by the ensured person as the 
main  carer  for  a  maximum  period  of  essentially  48  months  per  child.  Contribution-based 
unemployment  insurance  covers  the  unemployment  of  workers  and  employees  and  of 
employee-like  persons.  Civil  servants  are  not  covered  by  unemployment  insurance.  Self-

6   VfSlg 12568/1990.  

46 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
                                                      
employed persons can opt into unemployment insurance and collect benefits in cases where 
the business cannot be carried on. Unemployment benefits are granted from 20 to 52 weeks 
according to the age and insurance duration of the beneficiary and can be followed by special 
assistance benefits. In 2011, the social welfare Acts of the provinces providing for additional 
social assistance were supplemented by a system of needs-based minimum benefits, the basic 
benefit amounting to EUR 794.91. An assessment of the complex legislation described as to 
its apparently overall conformity with EU law seems difficult. Two judicial decisions dealing 
with  the  same  facts,  which  were  subject  to  the  preliminary  ruling  in  Waltraud  Brachner  v 
Pensionsversicherungsanstalt,7  may  highlight  problem  areas  in  the  intricately  interrelated 
provisions on unemployment benefits and pensions, in particular the entitlement of women to 
unemployment  assistance  depending  on  their  spouse’s  income,  which  constitutes  indirect 
discrimination.8  

5. Self-employed persons 

Self-employment is essentially defined by the relevant social security legislation. The general 
provisions  in  this  field  cover  entrepreneurial  activities  in  trade  (industry),  defining  their 
personal  scope  inter  alia  by  reference  to  the  mandatory  membership  of  the  Chambers  of 
Commerce and furthermore to tax legislation when providing for mandatory social security. 
They  also  apply  to  ‘free  employees’,  i.e.  persons  with  free  service  contracts  who  are  also 
considered self-employed  by  tax law,  and to the  free  professionals  under  the  group-specific 
social  security  legislation  mentioned  above.  In  principle,  being  self-employed  by  definition 
excludes  being  an  economically  dependent  worker  or  semi-dependent  employee-like  person 
to whom a quite different scheme of mandatory social insurance applies; in case of doubt or in 
case of multiple activity, multiple insurance under both schemes is mandatory. However, with 
the exception of the equal treatment legislation mentioned which applies to the access to self-
employment and transposes Directive 2010/41/EU, there is no legislation explicitly banning 
sex-based discrimination of self-employed persons. As for maternity protection and benefits 
for self-employed women, see Section 3 above. Helping spouses are covered by the pertinent 
social  security  schemes,  but  there  is  no  obligation  for  cover  guaranteeing  independent 
entitlement. Helping in the enterprise of one’s spouse is still a legal part of spousal duties as 
defined  by  the  Marriage  Act.  However,  the  helping  spouse  is  entitled  to  an  adequate 
remuneration  combined  with  social  security  registration  in  cases  where  their  contribution 
reaches the extent of a proper working relationship. The status as a helping spouse alone does 
not  create  individual  rights.  The  notion  of  ‘self-employed  worker’  (Article  2(a)  Directive 
2010/41/EU) appears to be contradictory by the standards of the Austrian legal system and is 
therefore not easily transposed. There seems to be broad consensus among practitioners that 
further  transposing  legislation  would  not  be  necessary.  However,  it  could  be  argued  that  it 
might  be  required  to  expand  existing  equal  treatment  legislation  for  the  private  sector  to 
ensure equal pay and non-discriminatory working conditions of self-employed persons to give 
the Directive full effect.  

6. Goods and services 

The Goods and Services Directive was transposed in 2008. The personal scope is stipulated in 
the most inclusive and general way possible (‘a person’ and ‘nobody’). The substantive scope 
provides  for  the  principle  of  equality  including  positive  measures  and  prohibitions  of 
discrimination  including  discrimination  by  sexual  or  sex-related  harassment  as  well  as 
victimisation,  applying  to  the  access  to  and  the  supply  of  goods  and  services  which  are 
available to the public and apt to be subject of legislation either of the federal State (e.g. civil-
law contracts in general, insurance, right to lease an apartment) or of the nine provinces (e.g. 

7   Case C-123/10 Waltraud Brachner v Pensionsversicherungsanstalt [2011] ECR I-10003.  
8   High Administrative Court 25.1.2011, 2007/08/0035; Supreme Court 6.12.2011, 10 Ob S 129/11k.  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

47 

 
 
 
 
                                                      
childcare facilities). Exceptions are made for private and family life, for the content of media 
and for advertisements as well as for public and private education. Furthermore, the unequal 
supply  of  goods  and  services  does  not  constitute  discrimination  if  the  difference  made  is 
justified  by  a  legitimate  aim,  whose  means  are  adequate  and  necessary.  In  addition,  the 
Directive  was  transposed  by  amendments  to  the  legislation  on  private  insurances.  Relevant 
cases  concerned  in  particular  regimes  linking  the  access  to  public  transport  to  the  different 
regular statutory  ages  of  retirement  of  women  and  men,  instead  of  to  whether  a  person  has 
actually retired or not.9 The CJEU ruling in Test-Achats was taken into account in the most 
recent legislative amendment. The former regime of applicable amendments was replaced by 
the rule that ‘the factor sex may not lead to different premiums or benefits’.  

7. Enforcement and compliance aspects 

Persons who feel discriminated against on grounds of sex may seek counselling and support 
from  the formally  independent  Ombudspersons  for  Equal Treatment  Affairs or may  ask  the 
competent Equal Treatment Commission for a – legally non-binding – opinion. Claims aimed 
at the enforcement of rights deriving from any employment relationship have to be filed at the 
specialised  Labour  and  Social  Courts,  claims  aimed  at  enforcement  of  rights  in  connection 
with the access to goods and services at the Civil Courts. As to insurances, individuals may 
claim compensation and consumers’ organisations may claim any other omission before the 
Civil  Courts.  Sanctions  (damages,  financial  compensation,  restitution  in  natura)  in  cases  of 
discrimination  differ  according  to  the  form  or  area  of  discrimination  and  whether  there  is 
material and immaterial damage, pay differences or inclusion in social benefits at enterprise 
level.  Measures  against  victimisation  are  provided  by  the  prohibition  of  dismissal  or  other 
adverse  treatment  as  a  reaction  to  a  complaint  of  the  complainants,  of  witnesses  or  other 
persons who act as supporters. The burden of proof shifts to the defendant in a claim filed by 
a  discriminated  person  if  the  alleged  victim  of  a  violation  has  presented  credible  facts  and 
circumstances, whereas the defendant has to provide evidence that it is less probable that the 
decision under dispute was based on the sex of the person.10 In all the proceedings mentioned, 
the  alleged  victims  of  discrimination  may  formally  be  supported  by  a  non-governmental 
organisation, explicitly  mandated  by  legislation, and by  the  Ombud. The social partners  are 
involved  in  the  enforcement  of  equality  rights  as  members  of  the  Equal  Treatment 
Commissions,  by  granting  their  members  cost-free  legal  counsel  as  well  as  representation 
before  the  Labour  and  Social  Courts,  by  direct  involvement  as  lay  judges  in  the  Labour 
Courts’ senates. Finally the collective bargaining partners are entitled to bring a motion for a 
declaratory judgment to the Supreme Court on the question of the existence or non-existence 
of rights,  which  has to be of interest  to  a  minimum  of  three  employees  or  three  employers. 
Further  measures  to  be  mentioned  are  the  recently  institutionalised  annual  dialogue  of  the 
Federal  Chancellor  with  the  relevant  NGOs,  the  monitoring  by  governmental  reports  to 
Parliament  and  the  competences  of  the  Equal  Treatment  Ombud  to  request  administrative 
penalties up to EUR 360 for non-compliance with the provisions on job advertising. Overall, 
the  enforcement  appears  to  be  satisfactory.  An  assessment  is  difficult,  however,  insofar  as 
there are no statistics on judicial decisions and as the dual system of enforcement, before the 
Courts  on  the  one  hand  and  the  Equal  Treatment  Commission  on  the  other,  has  become 
fraught with technical details subject to debate.  

9   Opinions of the Equal Treatment Commission for the private Sector GBK III/51/09, III/54/09, III/69/10, 31.5. 

2011; Constitutional Court 15.10. 2010, V 39/10-13, V 40/10-13.  

10   Under the softened provisions of the Recast Directive, the Austrian probability proof seems to be allowed (‘in 
accordance with their national judicial systems’) as more favourable as it is considered an alleviation for the 
plaintiff. See OGH 9.7.2008, 9 ObA 177/07. The Supreme Court’s decision notwithstanding, this has 
remained, a most controversial point among Austrian legal scholars and practitioners. 

48 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
                                                      
8. Overall assessment 

The overall assessment of the transposition of the relevant Directives by Austrian legislation 
and  case  law  is  positive.  However,  doubts  may  be  expressed  regarding  the  exclusion  of 
employee-like persons from the Maternity Protection Act particularly in occupational health 
and safety, and regarding the exclusion of self-employed persons (including persons with free 
service  contracts)  from  equal  pay  protection  in  the  private  and  in  the  agricultural  sector.  It 
might  be  mentioned  moreover,  that,  in  the  public  and  agricultural  sectors,  separate  equal 
treatment  legislation  of  the  nine  federal  provinces  or  Laender  is  necessary,  slowing  down 
transposition  and  complicating  assessment.  Regarding  the  casuistic  and  diversified  if  not 
fragmented  personal  scope  of  Austrian  labour  law  and  social  security  legislation,  similar 
conclusions might be drawn.  

BELGIUM – Jean Jacqmain 

1. Implementation of central concepts 

The principle of equality under the law is enshrined in the Constitution, with the prohibition 
of  discrimination  as  a  corollary.  The  distinction  between  direct  and  indirect  discrimination 
was  introduced  in  compliance  with  EU  law,  including  the  successive  definitions  of  indirect 
discrimination  (from  Directive  97/80/EC  to  Directive  2006/54/EC),  and  these  notions  are 
commonly  accepted.  However,  the  settled  case  law  (be  it  constitutional,  civil  or 
administrative) considers that any discrimination, direct or indirect, is potentially justifiable. 

This  contradiction  with  the  CJEU’s  stance  induced  the  following  artificial  solution, 
embodied  in  the  new  anti-discrimination  legislation  of  10 May  2007  (three  Acts  aimed 
respectively at implementing Directive 2000/43/EC, Directive 2000/78/EC, and all the gender 
equality  directives).  A  difference  is  made  between  ‘distinction’  and  ‘discrimination’: 
discrimination  is  a  distinction  which  cannot  be  justified;  when  the  object  of  a  direct 
distinction  falls  within  the  scope  of  EU  law,  there  is  direct  discrimination  for  which  no 
justification is permissible, unless the Act provides otherwise (see below), while if the object 
does not fall within the scope of EU law, i.e. exclusively under national law, even a ‘direct 
distinction’ can be justified. Case law grounded on the new antidiscrimination legislation is 
still rather scanty, but there are signs that the law courts do not understand such subtleties and 
that the protection provided by EU law is thus weakened. 

Following  the  scheme  explained  above,  positive  action  is  regarded  as  a  lawful 
justification  for  a  ‘direct  distinction’.  There  is  no  requirement  of  positive  action;  on  the 
contrary, the Gender Act of 10 May 2007 imposes a set of conditions (developed previously 
by the Constitutional Court in a matter unrelated to EU law) which fits the CJEU’s case law, 
but  is  expressed  in  rather  a  forbidding  way.11  The  implementation  of  the  legal  provision  is 
conditional  on  an  ancillary  Royal  Decree  which  has  not  yet  been  promulgated,  so  that  the 
lawfulness  of  positive  actions  which  had  been  undertaken  under  the  previous  (and  less 
restrictive) gender equality legislation is uncertain. 

11   The provision (Article 16) in the Gender Act reads: ‘Any measure of positive action may only be implemented 
under the following conditions: there must be a manifest inequality; the disappearance of that inequality must 
be designated as an objective to be reached; the measure of positive action must be temporary by nature and 
designed to cease as soon as the objective has been reached; the measure may not restrict other persons’ rights 
needlessly’. Moreover, ‘In compliance with [those] conditions, [a Royal Decree] will define in which 
hypotheses and under which conditions any measure of positive action may be implemented’. Such Royal 
Decree has not yet been adopted. See also: European Network of Legal Experts in the field of Gender Equality, 
Positive Action Measures to Ensure Full Equality in Practice between Men and Women, including on 
Company Boards, September 2011, Belgium at pp. 42-47, http://ec.europa.eu/justice/gender-equality/files/
gender_balance_decision_making/report_gender-balance_2012_en.pdf accessed 19 February 2014. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

49 

 
 
 
 
 
 
 
                                                      
Regarding  instructions  to  discriminate,  the  Act  of  10  May  2007  includes  the  necessary 
provision to comply with EU law (such instructions are forbidden), but there is no significant 
related case law. 

Belgian law preceded EU law in equating sexual harassment with sex discrimination, but 
more recently Directive 2002/73/EC (now integrated in Directive 2006/54/EC) introduced a 
distinction between sexual harassment and gender-related harassment. The present Act of 10 
May 2007 complies with the distinction. However, Belgium possesses, within the Well-Being 
at  Work  Act  of  4  August  1996  (i.e.  the  legislation  aimed  at  protecting  health  and  safety  at 
work), a complete set of provisions devised for the prevention of and redress for harassment 
and sexual harassment regardless of the perpetrator’s motives. Regrettably, the Act of 10 May 
2007 provides that when the victim of harassment/sexual harassment is an employee, she/he 
must rely exclusively on the Act of 4 August 1996 to obtain protection or redress. Preventing 
the  victim  of  a  gender  discrimination  which  consists  of  harassment/sexual  harassment  from 
relying on the Gender Act appears completely at variance with EU law. Moreover, in contrast 
with the Act of 2007, the Act of 1996 did not provide any minimum amount of fixed damages 
as compensation for moral prejudice; this shortcoming was finally corrected by the Act of 28 
March 2014.  

2. Equal pay and equal treatment at work  

2.1. Equal pay 
Equal pay is guaranteed both by Collective Agreement No. 25 of the National Labour Council 
(only  applicable  to  the  private  sector)  and  by  the  Act  of  10  May  2007  (which  includes  the 
public  sector,  but  with  the  restriction  explained  in  2.2.  hereafter).  Taken  together,  both 
instruments  cover  all  the  aspects  of  the  notion  of  pay  within  the  scope  of  EU  law,  such  as 
remuneration proper, be it in specie or in natura, tips, various bonuses, etc. and they include 
job classification schemes. However, the Act of 10 May 2007 does not mention work of the 
same value (obviously a mere omission). 

The case law on equal pay is extremely scanty. In a couple of cases, the courts accepted 
that a difference in education was a justification for unequal pay, without checking whether 
such a criterion was relevant to the job in question. 

Although  all  sectors  of  activity  are  encouraged  by  the  Federal  Government  to  develop 
gender-neutral  job  classification  schemes  and  the  social  partners  endeavoured  to  promote 
such  developments  when they  updated  Collective  Agreement  no.  25  in  2008,  the  process is 
very slow and progress reports are not readily available. 

Recently,  the  Act  of  22  April  2012,  ‘aimed  at  fighting  the  pay  gap  between  men  and 
women’, amended various pieces of legislation in order to induce the social partners (in the 
private sector) to make fresh efforts: e.g. joint sector committees will have to revise their job 
classification systems to ensure that they are gender neutral; in individual enterprises, works 
councils  will  consider  the  necessity  for  a  plan  aimed  at  developing  a  gender-neutral  pay 
structure,  etc.  However,  various  technical  defects  in  the  drafting  of  that  Act  hampered  its 
implementation, so that it had to be amended by the Act of 12 July 2013 (for instance, the Act 
of 22 April 2012 referred to various pieces of legislation that had already been replaced by 
newer ones). Moreover, the implementation of the Act of 22 April 2012 required a number of 
ancillary Royal Decrees, which were only promulgated on 25 April 2014.  

2.2. Access to work and working conditions 
It should be made clear that given the federal structure of Belgium, vocational orientation and 
training fall within the exclusive jurisdiction of the federate authorities, which is also true for 
various other matters such as education (including school staff) or public housing (within the 
scope of Directive 2004/113/EC). This causes extreme confusion and some significant gaps 
still  remain  in  the  transposition  of  EU  law,  although  since  2008  every  one  of  the  federate 
authorities have adopted new legislation, usually inspired by federal legislation. Certain (but 
not all) of those new decrees (décrets/decreten) or orders (ordonnances/ordonnanties) refer to 

50 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
Directive 2006/54/EC. Curiously, the federal Gender Act of 10 May 2007 does not; a formal 
rather than a substantive omission. 
  With these serious qualifications, Belgian law fits the substantive and personal scopes of 
the directives, as (within the Federal Parliament’s jurisdiction) the Act of 10 May 2007 covers 
all types of employment relations, in the private and public sectors, and in all their aspects of 
recruitment,  working  conditions  and  dismissal.  As  to  self-employed  persons,  the  Act 
guarantees equal treatment not only in access to professions, but also in access to partnership 
in associations of practitioners. 

The  exceptions  which  the  directives  allow  (positive  action;  protection  of  maternity; 
positions for which sex is a determining factor) are accepted by the Act of 10 May 2007 as 
‘justifications  of  direct  distinctions’  (see  1.  above).  However,  positions  for  which  sex  is  a 
determining  factor  must  be  listed  in an  ancillary  Royal  Decree  which  has  not  been  adopted 
yet. 
  Moreover,  the  Act  provides  that  the  protection  of  maternity,  far  from  being 
discrimination, is a condition for an effective equal treatment of men and women. 

2.3. Occupational pension schemes 
The  provisions  of  the  Act  of  10  May  2007  are  a  carbon  copy  of  those  of  Directive 
2006/54/EC.  Concurrently,  the  Occupational  Pension  Scheme  (Employees)  Act  of  28  April 
2003 complies with the Directive. In that way, Belgian law covers the substantive scope of 
EU  law,  prohibiting  gender  discrimination  in  all  occupational  schemes  (which,  in  Belgium, 
may only supplement the statutory social security schemes). 

However,  as  to  personal  scope  originally  the  Act  of  10  May  2007  did  not  deal  with 
occupational schemes for the self-employed. This gap has been filled by an amendment to the 
Act, inserted by an Act of 8 June 2008. 

Both Acts (of 2003 and 2007) make use of the faculty of exceptions offered by Article 

9(1) i) and j) of the Directive, concerning a limited use of gender-related actuarial factors. 

The validity of the same exceptions, both in the Directive and in national law, has been 
called into question by a CJEU ruling,12 but no attention has been paid to that development by 
the Belgian authorities.  

There  was  some  case  law  concerning  occupational  social  security  benefits  which  were 
related  to  the  different  ages  of  retirement  in  the  statutory  pension  scheme,  but  as  from 
1 January 2009 this age is now 65 for men as well as women (see 4. below), so that there no 
longer is any litigation in that respect. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

As  to  the  protection  of  pregnancy  and  maternity,  the  Working  Conditions  Act  of  16 March 
1971 (which is applicable to all employers and employees, private and public, in the whole 
country) provides for a 15-week period of maternity leave, of which the last week preceding 
the delivery and the nine subsequent weeks are compulsory; extra weeks are available under 
certain  circumstances.  An  employee  who  is  pregnant  or  has  given  birth  may  only  be 
dismissed on grounds which are unrelated to her physical condition. The right to return to the 
same  job  is  not  formally  guaranteed,  but  the  employer’s  failure  to  reinstate  the  employee 
would be seen as being equivalent to her dismissal. During the maternity leave, tenured staff 
members  in  the  public  services  remain  entitled  to  their  normal  remuneration;  the  other 
employees (in the public and private sectors) receive social security benefits equal to 82 % of 
the gross remuneration (i.e. 100 % of the net remuneration) during the first 30 days and 75 % 
during the remainder of the leave. 

Shortcomings  of  the  protective  system  concern  the  lack  of  statutory  provisions  to 
guarantee that the absences related to maternity are taken into account for the entitlement to 
benefits such as a Christmas bonus, and the amount of the fixed damages to be paid by the 

12   In case C-227/04 P Lindorfer v Council of the European Union [2007] ECR I-6767. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

51 

 
 
 
 
 
 
 
 
 
                                                      
employer  in  the  case  of  an  unlawful  dismissal  (six  months’  pay)  is  hardly  an  effective 
deterrent.  Moreover,  entitlement  to  social  security  benefits  is  conditional  on  having 
contributed  to  the  Sickness  Insurance  Scheme  for  a  minimum  of  6  months,  so  that  it  may 
occur that an employee does not receive any benefit during maternity leave. 

As to the other leave regimes, there are provisions for parental leave (a personal right for 
any employee for a child under 12, or 21 if he/she is disabled; 4 months full-time or 8 half-
time or 20 one-fifth time; with a modest benefit paid by social security; and protection against 
dismissal); for adoption leave (a personal right for any employee; 6 or 4 weeks when the child 
is less or more than 3 years old; with the normal remuneration for 5 days and then the same 
social  security  benefit  as  during  maternity  leave;  and  protection  against  dismissal);  for 
paternity leave (a personal right; now also accessible to the same-sex spouse or life partner of 
the  mother;  10  days  to  be  used  during  the  4  months  following  the  birth;  with  the  normal 
remuneration  for  3  days  and  then  the  same  social  security  benefit  as  during  the  maternity 
leave; and some protection against dismissal); and time off (a personal right; 10 days per year; 
unpaid and without benefit; and no protection against dismissal). Provisions for the last three 
forms of leave are more generous in the public sector. 

4. Statutory schemes of social security  

The  Act  of  10  May  2007  contains  a  prohibition  of  discrimination  in  statutory  schemes  of 
social  security.  The  substantive  and  personal  scope  is  wider  than  in  Directive  79/7/EEC  as 
family  benefits  and  survivors’  benefits  are  included  as  well  as  annual  holidays  and  holiday 
bonuses (in Belgium, a statutory scheme for employees), and the retirement pension scheme 
for tenured staff members in the public services (which the CJEU’s case law would regard as 
occupational). 

Up  to  the  Act  of  2007,  there  were  no  such  general  provisions,  but  various  statutes  and 
regulations  had  been  brought  into  line  with  the  Directive,  so  that  the  implementation  is 
adequate,  although  some  limited  gaps  can  still  be  identified  (e.g.  apprentices  under  18  in 
small  businesses  are  regarded  as  dependent  children  under  the  Healthcare  and  Sickness 
Insurance scheme; consequently, during maternity leave a female apprentice is not entitled to 
maternity benefits, which are paid by that Insurance, so that the leave is unpaid, an eventuality 
which cannot affect a male apprentice).  

The main objects of debate are, firstly, the weakness of retirement benefits for employees 
and  the  self-employed,  which  are a  function  of the  average  earnings  over  the whole  career. 
Given  the  pay  gap  between  active  men  and  active  women  and  the  negative  impact  of 
interruptions  in  the  career  due  to  the  unbalanced  sharing  of  family  responsibilities,  the 
dimension  of  de  facto  indirect  gender  discrimination  is  obvious.  And  secondly,  the 
desirability  of  substituting  individual  rights  for  dependents’  rights,  as  the  latter  may  be 
regarded as a consecration of women’s subordinate position (i.e. relying on widows’ pensions 
rather than personal retirement benefits). 

Belgium  made  use  of  the  exceptions  concerning  the  age  of  retirement  and  the  related 
duration of a full career until 1996; as from 1997 the differences were progressively reduced 
and  since  1  January  2009,  the  age  is  65  and  the  full  career  45  years  for  both  sexes  in  the 
employees’ and self-employed persons’ schemes (there has never been any difference in the 
public service scheme). 

5. Self-employed persons  

Aspects  relevant  to  Directive  2006/54/EC  and  Directive  79/7/EEC  have  been  mentioned  in 
2.2., 2.3. and 4. 

A limited scheme of maternity leave has been introduced. Presently, its duration is eight 
weeks,  of  which  five  are  optional  and  may  be  divided  into  single  weeks;  a  benefit  (EUR 
440.50 per week) is paid by the maternity branch of the healthcare sickness scheme. 

52 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
Initially, access to the sickness (and maternity) scheme  was  made available for helping 
spouses on a voluntary basis. More recently, affiliation to the whole system of social security 
for the self-employed was made compulsory for helping spouses. 

Obviously,  the  compulsory  affiliation  goes  much  further  than  the  requirements  of  the 

Directive. 

6. Goods and services  

The Act of 10 May 2007 implements the Directive in a rather literal way, although its scope 
does not exclude education and the media. Some protection against victimisation is provided, 
as well as minimum fixed damages as a means of redress. There are provisions for positive 
action  (see  1.  above)  and  for  goods  and  services  meant  for  one  sex  (but  the  latter  must  be 
listed in a Royal Decree which has not yet been drafted). 

As  to  the  use of  gender-related  actuarial  factors  in  insurance,  the  original  Article  10  of 
the  Act  provided  that  it  was  only  permitted  until  20  December  2007.  However,  an  Act  of 
21 December  2007  amended  Article10  so  that  the  exception  remained  in  force  (for  life 
insurances  only),  with  a  number  of  safeguards  aimed  at  complying  with  Articles  5(2)  and 
16(1)  of  the  Directive.  When  a  consumers’  rights  association  challenged  the  Act  of  21 
December  2007  in  the  Constitutional  Court,  the  latter  referred  the  case  to  the  CJEU  for  a 
preliminary  ruling.  After  the  latter’s  decision  in  case  C-236/09  Test-Achats,13  the 
Constitutional  Court’s judgment  no.  116/2011  annulled  the  Act  of  21  December  2007 from 
the same date. 

Finally, an Act of 19 December 2012 redrafted Article 10 of the Gender Act to extend the 
prohibition  of  the  use  of  gender-segregated  actuarial  factors  to  life  insurance  as  from  21 
December  2012,  while  preserving  existing  contracts  within  the  limits  which  the  European 
Commission had suggested in its Guidelines of 22 December 2011. 

7. Enforcement and compliance aspects 

The  provisions  on  victimisation (a  prohibition  of  dismissal  or  of  a  negative  modification  of 
the  employment  conditions,  unless  for  reasons  unrelated  to  the  employee  complaining  of 
discrimination) are  standard  in  labour  law  and  are  well  understood  by  the  courts.  However, 
when  the  employer  fails  to  reinstate  the  employee  in  the  job  or  subject  to  the  previous 
conditions, the standard amount of fixed damages (six months’ pay) is no deterrent. 

The provisions on the burden of proof are a copy of those in Directive 2006/54/EC (the 
claimant must adduce prima facie evidence of discrimination, after which the defendant must 
demonstrate that there is no discrimination). The related case law is still rather scattered, but 
recently  courts  have  tended  to  pay  closer  attention  to  elements  which  the  defendants,  i.e. 
employers, produced as evidence of the absence of discrimination. 

The Act of 10 May 2007 has improved previous provisions on remedies and sanctions in 
order  to  make  the  courts’  power  to  issue  injunctions  to  put  an  end  to  discriminations  more 
effective. There is no case law as yet in that respect. The Act also introduced a long-awaited 
minimum amount of fixed damages (six months’ pay) to be allowed as compensation for the 
moral  damage  due  to  discrimination  (unless  the  victim  can  demonstrate  that  the  damage  is 
greater). Again, such an amount is hardly a deterrent (see 3. above). 

Access to the courts fits the requirements of the directives, which the Act of 10 May 2007 
closely  follows.  Within  the  scope  of  the  directives,  any  person  claiming  to  be  a  victim  of 
gender discrimination may bring an action at the Labour Courts. Moreover, if the source of 
discrimination  is  a  decision  of  a  public  authority,  the  victim  may  apply  to  the  Conseil 
d’État/Raad van State for its annulment. Access to the courts is also granted to associations 
which aim at promoting human rights or combating discrimination. 

13   Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

53 

 
 
 
 
 
 
 
 
 
 
 
                                                      
There is a gender equality body, the Institute for Equality of Women and Men, entrusted 
with  the  missions  required  by  the  directives  and  in  addition  endowed  with  the  power  to 
commence proceedings. 

Apart from Collective Agreement (CA) No. 25 on Equal Pay (see 2.1.), updated by CA 
No. 25ter of 9 July 2008, one can hardly say that the social partners have been very active in 
the promotion of gender equality. Legislative provisions do not go beyond recognising their 
capacity  to  have  standing  in  the  courts  (in  order  to  assist  their  individual  members  or  to 
defend  their  collective  interests)  and  requiring  that  they  be  consulted  before  Royal  Decrees 
implementing the Act of 10 May 2007 are promulgated. 

Collective agreements are contracts between their signatories, but those provisions which 
improve the employees’ individual rights are automatically extended to the whole workforce 
in  question.  CAs  may  be  made  generally  binding  by  way  of  Royal  Decrees,  so  that  an 
employer  who  fails  to  comply  at  the  same  time  commits  a  misdemeanour.  CAs  are  not 
applicable in the public sector, which uses different systems of collective negotiation. 

Again, CA No. 25 must be quoted, as well as some collective agreements which include 
provisions on positive action, but generally, no great improvements in gender equality have 
been achieved through such instruments. 

Effective implementation of the new Pay Gap Act of 22 April 2012 (see 2.1) will be a 

test for the social partners’ motivation to achieve more decisive results. 

8. Overall assessment 

Belgium started building up its gender equality legislation in 1978. Over the years, quite an 
extensive  body  of  case  law  has  been  developed  but,  apart  from  some  pioneers,  genuine 
awareness  among  practitioners  (judges,  lawyers,  legal  advisors  with  the  trade  unions  and 
employers’ associations) is quite a recent (and welcome) phenomenon. As to the legislation 
itself,  the  Act  of  10  May  2007  is  one  element  in  an  ambitious  attempt  to  construct  a 
comprehensive anti-discrimination system and implement European law at the same time. The 
above  comments  have  expressed  misgivings  as  to  the  excessive  complexity  of  certain  key 
concepts and case law tends to reveal that they are not ill-founded. It is also regrettable that, 
six  years  after  the  Gender  Act  of  10  May  2007  came  into  force,  several  ancillary  Royal 
Decrees  which  are  necessary  for  its  proper  application  have  not  been  adopted  yet  (e.g. 
concerning positive action, see 1.). Finally, the implementation of EU law in federal Belgium 
remains crippled by the multiplicity of competent authorities.  

BULGARIA – Genoveva Tisheva 

1. Implementation of central concepts 

Most  of the  central  concepts  of the  EU  gender  equality  acquis  were fully  transposed  in  the 
Bulgarian legislation prior to the EU accession in 2007. 

The definitions of direct discrimination and indirect discrimination correspond to the EU 
definitions.  The  prohibition  on  discrimination  (as  ‘(…)  any  limitation  of  the  rights  or  any 
privileges’) is declared in Article 6(2) of the Bulgarian Constitution. The Law on Protection 
from Discrimination (LPFD) contains the prohibition on discrimination on a broad range of 
grounds,  including  on  the  ground  of  gender.  It  also  contains  the  definitions  of  direct  and 
indirect  discrimination.  Direct  discrimination  represents  any  less  favourable  treatment  of  a 
person than another person is, has been or would be treated under comparable circumstances. 
Indirect discrimination is to place a person in a less favourable position in comparison with 
other  persons  by  means  of  an  apparently  neutral  provision,  criterion  or  practice,  unless  the 
said provision, criterion or practice can be objectively justified in view of a lawful aim and 
the  means  for  achieving  this  aim  are  appropriate  and  necessary.  The  Labour  Code  ensures 
special  protection  against  direct  and  indirect  discrimination,  including  that  based  on  sex,  in 
the exercise of labour rights and obligations. 

54 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
 
 
 
The case  law  of the  Commission  for  Protection  from  Discrimination  (KZD)  and  of  the 
courts has so far mainly dealt with the notion of direct discrimination. 
to 
apply  positive  action  measures for  achieving  gender equality  is  provided  for  in  the  Law  on 
Protection from Discrimination. Such measures are allowed along with measures in favour of 
disadvantaged  groups  in  general.  Thus  positive  action  measures  in  favour  of  the  under-
represented  sex  may  be  taken  in  education  and  training  for  ensuring  a  balance  in  the 
participation of men and women, and as special measures for individuals or groups of persons 
in  a  disadvantaged  position.  In  the  sphere  of  employment  relations,  positive  action  can  be 
taken for encouraging persons belonging to the less represented sex to apply for a certain job 
or position and for encouraging the vocational development and participation of workers and 
employees belonging to the less represented sex. 

The  possibility 

The positive action measures which are allowed in the process of hiring for positions in 
state and local government administration are in compliance with EU standards. It is a pity, 
though, that in 2006 the possibility for applying a quota system for the participation of women 
and  men  in  managing  and  advisory  bodies  was  abolished.  This  amendment,  made  with  the 
justification  ‘to  achieve  compliance  with  EU  law’, in  practice  deprived  Bulgaria  of  a  much 
needed tool for achieving gender equality, which is allowed by the EU’s case law.  

Following  an  amendment  of  the  law  from  August  2012,  it  is  not  considered 
discriminatory  to  treat  people  differently  in  relation  to  initiatives  mainly  or  exclusively 
promoting  entrepreneurship  among  women,  when  they  are  the  less  represented  sex,  or  for 
avoiding or compensating for disadvantages in a professional career. 

In conclusion, the Bulgarian legislation on positive action goes beyond the employment 
sphere and thus beyond EU standards. In the employment sphere, the regulation of positive 
action measures for the under-represented sex is an obligation of the employer.  

The case law of the Commission for Protection from Discrimination and of the courts has 
so far focused on gender quotas in the education system. The Commission ruled in favour of 
such  quotas  in  languages  and  teaching  university  subjects  in  order  to  avoid  further  sex 
segregation in the labour market (the decision was confirmed by the Supreme Administrative 
Court). The case law of the civil courts is rather contradictory.  

The Bulgarian notion of harassment and sexual harassment corresponds to EU standards. 
Harassment  and  sexual  harassment  are  explicitly  forbidden  and  defined  by  the  Law  on 
Protection  from  Discrimination.  Moreover,  Bulgarian  law  goes  beyond  the  regulation  of 
harassment  at  the  workplace  and  also  extends  the  protection  to  harassment  in  educational 
institutions. The case law consists of court cases and cases before the equality body, initiated 
by  women  concerning  sexual  harassment  and  there  is  a  tendency  that  the  number  of  such 
cases  is  increasing.  There  are  still  gaps  in  the  practical  implementation:  there  are  delays  in 
proceedings and the application of the burden of proof principle is not in full compliance with 
EU standards. 

As  to  the  instruction  to  discriminate,  it  is  explicitly  recognised  as  discrimination  and 
means  direct  and  intentional  encouragement,  giving  an  instruction,  exerting  pressure  or 
persuading someone to engage in discrimination where the instigator is capable of influencing 
the person instigated. 

2. Equal pay and equal treatment at work 

2.1. Equal pay  
The EU standards of equal pay are fully transposed in Bulgarian legislation. The principle of 
equal pay is regulated in the Labour Code and in the Law on Protection from Discrimination. 
The employer shall ensure equal remuneration for equal or equivalent work. It shall apply to 
all types of pay – remuneration, paid directly or indirectly, in cash or in kind. The notion of 
equal  pay  includes  the  assessment  criteria  in  determining  the  labour  remuneration  and  the 
assessment of the work performance. These criteria shall be equal for all employees and shall 
be  determined  by  collective  labour  agreements  or  by  internal  administrative  rules  regarding 
salaries. There is a specific procedure for the assessment of civil servants. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

55 

 
 
 
 
 
 
 
 
 
In  principle,  no  justifications  for  differences  in  pay  for  women  and  men  are  accepted. 
This is confirmed by the case law of the Commission for Protection from Discrimination (e.g. 
Devnya  Cement  –  Decision  of  the  CPFD  No.  29/4.07.2006,  confirmed  by  Decision 
No. 10594/1.11.2007 of the Supreme Administrative Court). 

The law provides for the possibility of more advantageous working conditions in relation 
to  different  working  experience  or seniority,  when  it  is  objectively justified  for achieving  a 
legitimate aim with the means deemed necessary. 

There  is  a  big  gap  between  the  formal  recognition  of  the  equal  pay  principle  and  its 
implementation  in  practice.  No  specific  legislative  or  policy  measures  were  adopted  to 
address the gender pay gap. 

2.2. Access to work and working conditions 
The protection given by the Bulgarian legislation in the field of access to work and working 
conditions  is  almost  in  full  compliance  with  the  EU  equal  treatment  directives.  The  main 
guarantees  are  given  by  the  Law  on  Protection  from  Discrimination,  supplemented  by  the 
guarantees of the Labour Code (for the labour contracts) and by the respective provisions of 
the Law on Civil Servants.  

The protection provided by the law covers all aspects of working life and is extended to 
all types of employment relations, including those in the armed forces, with the exception of 
activities  and  posts  where  sex  constitutes  a  determining  factor.  The  protection  also  covers 
civil  service  relationships.  In  addition,  Bulgarian  law  also  contains  protection  against 
discrimination in unemployment. 

As  an  exception,  different  treatment  is  allowed  by  reason  of  the  nature  of  a  particular 
occupation or activity, or of the conditions under which it is performed, gender characteristics 
constitute  an  essential  and  decisive  occupational  requirement,  the  aim  is  legitimate  and  the 
requirement does not go beyond what is necessary for its achievement. Two ordinances by the 
Minister  of  Labour  and  Social  Policy  and  by  the  Minister  of  Defence  determine  lists  of 
activities where sex represents such a requirement. More concrete exceptions are provided in 
cases of occupational activities and religious education or training at religious institutions or 
organisations.  

The detailed regulation of the exceptions goes beyond EU law and presents a risk of non-
compliance with the requirements for legitimacy and proportionality – namely, the exceptions 
based on religious considerations cannot be a priori justified. 

The case law in the field of equal treatment is scarce and consists mainly of cases before 

the Commission for Protection from Discrimination. 

2.3. Occupational pension schemes 
From  the  beginning  of  2000,  the  pension  system  in  Bulgaria  consists  of  three  pillars.  The 
model  was  based  on  the  World  Bank’s  advice  and  is  different  from  the  pillars  in  the  EU 
countries. The first pillar is the universal social security fund, a ‘pay as you go’ type, which is 
obligatory for persons in an employment relationship or self-employed persons. The second 
pillar  is  a  mandatory  and  fully-funded  pension  fund  with  defined  contributions  which  are 
allotted to individual accounts run by licensed pension insurance companies. The third pillar 
includes supplementary voluntary pension schemes. 

In  Bulgaria  there  are  no  second  pillar  pension  schemes  comparable  to  the  type  of 
occupational  pension  schemes  recognised  in  EU  law.  Provisions  for  the  establishment  of 
occupational  pension  schemes  are  contained  in  the  Social  Security  Code  within  the  third 
pillar. These schemes are not yet developed in Bulgaria. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Under Bulgarian law, the employer is obliged to adjust the working conditions for pregnant or 
breastfeeding  women  while  retaining  the  same  salary  level.  If  such  an  adjustment  is  not 
possible,  the  employer  shall  grant leave  to the  woman  in  question. The  period  of  maternity 
leave is currently 410 days, 45 of which are prior to giving birth and adoptive mothers can 

56 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
 
 
 
benefit from this right as well. This extended leave was introduced in January 2009 and the 
change was justified by demographic considerations, as Bulgaria is the country which is most 
severely  affected  by  the  demographic  crisis  in  Europe.  The  effects  of  this  measure  can  be 
seriously  doubted,  because  a  maternity  leave  period  which  is  too  long  may  harm  gender 
equality  in  general  and  the  possibilities  of  Bulgarian  women  in  the  labour  market  in 
particular. Despite this, the recent changes in the Labour Code and in the Law on Protection 
from  Discrimination  at  least  reveal  a  development  in  Bulgarian  legislation,  shifting  from  a 
focus  on  special  protection  of  women  as  mothers  towards  reconciliation  measures  ensuring 
more  equality  both  for  women  and  men.  In  fact,  after  the  child  is  6 months  old  and  with 
consent of the mother (or adoptive mother), the father (or adoptive father) is allowed to use 
the remaining leave, instead of the mother. 

In  all  other  areas,  maternity  protection  is  ensured  according  to  EU  requirements.  For 
example, the maternity benefits amount to 90 % of the salary and the protection of a pregnant 
woman  from  dismissal  is  almost  absolute.  Bulgarian  women  on  maternity  leave  as  well  as 
fathers on paternity and childcare leave are explicitly recognised as having the right to return 
to their job or to an equivalent post and to benefit from improvements in working conditions. 
In  August  2012  salary  increases  were  excluded  from  the  improvements  those  returning  to 
work are entitled to. 

After the end of the maternity leave period, and up to the second year of the child, the 
parents have a transferable right to childcare leave paid on the basis of the minimum social 
security  benefits.  This  leave  is  mainly  used  by  mothers  and  can  also  be  used  by  the 
grandparents of the child. It corresponds to the Bulgarian tradition of grandmothers’ support 
in  child  rearing.  As  to  parental  leave,  this  was  introduced  in  August  2004  and  amended  in 
2012 in order to achieve compliance with the new Parental Leave Directive. Both biological 
and adoptive parents of a child between 2 and 8 have, in principle, a non-transferable right to 
an unpaid parental leave of up to six months. The right to the parental leave cannot be used 
before the child turns 2. In addition, each of the parents can use up to 5 months of the leave of 
the  other  parent  upon  his/her  consent.  Parents  using  parental  leave  are  not  explicitly 
guaranteed the right to return to their job or to an equivalent post. The provisions on parental 
leave, on the one hand, are therefore more favourable because of the length of the leave but, 
on the other hand, are not in full compliance with EU standards. 

Paternity  leave  was  recently  recognised  under  Bulgarian  law.  When  the  parents  are 
married or live together, the father has the right to 15 days’ paternity leave upon the birth of 
the child.  

A recent provision of the Labour Code – Article 164b LC14 – introduces a new type of 
leave:  paid  leave  for  raising  an  adopted  child  between  the  ages  of  2  and  5.  The  adoptive 
mother has the right to a leave of up to 365 days, and starting 6 months after the adoption of 
the child; the rest of the leave can be transferred to the father. 
  Workers and employees who return from maternity, paternity or parental leave have the 
right to require temporary adjustments of their working arrangements with their employer, in 
view of reconciliation of their work and family life. 

During  maternity/childcare  leave  and  the  15  days’  paternity  leave,  the  mother  and  the 
father  are  insured  under  the  Code  of  Social  Insurance.  The  compensation  is  generally 
equivalent  to  90  %  of  the  average  salary  received  in  the  previous  18  months.  There  is  an 
absolute ban on dismissal of a worker or employee on maternity or childcare leave, except in 
cases where the enterprise has to close down. Legislative changes were adopted at the end of 
2009 in the Labour Code, in the Law on Protection against discrimination and in the Law on 
Public  Servants.  It  guarantees  protection  against  discrimination  in  the  labour  market  for 
female  workers  and  employees  who  are  in  the  advanced  stages  of  assisted  reproductive  in-
vitro treatment. Their rights were made consistent with those of pregnant female workers and 
employees and with those who are breastfeeding. The protection covers a period up to 20 days 
from the aspiration of the ova until the transfer of the embryo. The protection corresponds to 

14   SG 104/2013, in force since 1 January 2014.  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

57 

 
 
 
                                                      
the  principle  of  protection  of  pregnant  women  rather  than to  the  general  principle  of  equal 
treatment for men and women, as adopted in the Mayr case.15  

4. Statutory schemes of social security  

Statutory  social  security  schemes  in  Bulgarian  law  are  formally  in  compliance  with  EU 
standards.  

Equality  between  insured  persons,  thus  also  gender  equality,  is  among  the  guiding 

principles of the Bulgarian social security system.  

According  to  Article  2  of  the  Bulgarian  Social  Security  Code  (SSC),  public  social 
insurance  provides  benefits,  allowances  and  pensions  for:  (1)  temporary  disability; 
(2) temporarily reduced working capacity; (3) disablement; (4) maternity; (5) unemployment; 
(6)  old  age  and  (7)  death.  The  law  differentiates  between  the  benefits  of  persons  insured 
against all social insurance risks, those insured against employment injury and occupational 
diseases  and  persons  insured  against  disablement  by  general  sickness,  old  age  and  death 
(Articles 11-13 SSC). The main reasons to exclude people from receiving benefits are unpaid 
social security contributions and participation in non-remunerated jobs. Since women prevail 
in such jobs, they are more often deprived of social security. 
  With  respect  to  the  exclusions,  the  main  one  is  maintaining  the  difference  in  the 
pensionable age for men and women.  By the date of the adoption of the SSC, this age was 
fixed  at  60  years  and  6  months  for  men  and  55  years  and  6  months  for  women.  Since 
December 2000 this age has gradually been increased by 6 months for both men and women 
from the beginning of each year until 63 years for men and 60 years for women is reached. In 
2011,  changes  in  the  law  provided  for  a  smooth  increase  of  the  pensionable  age  both  for 
women and men with 4 months per year from 2012, to 63 for women and 65 for men by 2020. 
Nevertheless,  the  increase  of  the  pensionable  age  was  temporarily  ‘frozen’  for  2014  by  the 
Law on the Budget of Social Security for this year,16 until a new solution can be found in the 
near future. 

The difference in pensionable age is allowed by EU standards but equalisation of it is 
currently a focus in EU policy. Despite this, lower and different pensionable ages are justified 
in  Bulgaria  due  to  the  hardships  of  the  transition  and  the  heavy  burden  on  a  generation  of 
working  people  during  this  period.  The  very  high  level  of  youth  unemployment  is  another 
reason for maintaining this pensionable age. 

According to the regulations in force, both the first and the second pillar of the Bulgarian 
pension  system  belong  to  the  statutory  social  security.  In  the  second  pillar  –  the  additional 
mandatory  and  privately  managed  second  tier  of  the  statutory  pensions  –  the  insurance 
companies  use  gender-related  actuarial  factors.  This is  in  contradiction  with  the  EU  law  on 
equality in statutory pensions. As the Bulgarian second pillar comprises all women and men 
born after 1960, inequality affects a great number of women. A case was brought before the 
Supreme Administrative Court against gender-related actuarial factors. 

Instead  of  the  system  of  universal  family  benefits,  targeted  family  assistance  schemes 
were  introduced  in  Bulgaria.  The  latter  are  not  based  on  equality  principles  but  on  purely 
economic criteria. 

5. Self-employed persons 

Bulgarian legislation is partly in compliance with the minimum standards of the EU. Gender 
equality  in  self-employment  and  the  status  of  helping  spouses  are  not  explicitly  regulated. 
Since August 2012, no direct or indirect discrimination is allowed in the public or economic 
sector in relation to the establishment, equipment or development of an economic activity or 

15   Case C-506/06 Sabine Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] ECR I-01017. 
16   See: Law on the Budget of social security for 2014, Paragraph 4 p. 33, available at: 

http://www.tita.bg/page/315, last accessed 18 April 2014.  

58 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
                                                      
any other form of similar activity. Harassment and sexual harassment are explicitly banned in 
these areas too.  

The  general  provisions  of  the  LPFD  and  of  the  Social  Security  Code  remain  the  only 
reference to equality in self-employment. Except for freelancers and artisans, there is no clear 
and  explicit  definition  of  self-employed  persons  as  a  specific  group.  The  unclear  status  of 
helping spouses reflects on their social security status.  

There is a guarantee for the rights of those categories of self-employed persons who are 
registered under the Social Security Code and under the Ordinance on the Social Insurance of 
Self-Insured  Persons  and  Bulgarian  citizens  working  abroad.  For  them,  mandatory  social 
security schemes do exist. Self-employed women are entitled to compensation for pregnancy 
and  maternity  under  these  schemes.  Voluntary  social  security  pension  schemes  were 
introduced with the Social Security Code and they are open to all persons in a position to pay 
the  contributions.  Namely,  spouses  of  persons  registered  as  practitioners  of  a  liberal 
profession and/or a skilled craft and registered agricultural producers, with their consent when 
acting in the course of their work, may voluntarily pay contributions at their own expense for 
insurance  against  disability  due  to  general  sickness,  old  age  and  death,  and  against  general 
sickness and maternity. 

According  to  the  Law  on  Family  Assistance  for  Children,  both  categories  of  women  – 
self-employed  persons  and  helping  spouses  –  are  eligible  for  the  allowances  for  pregnancy 
and giving birth, and for the targeted child allowances. 

6. Goods and services 

Equality  in  the  access  to  and  provision  of  goods  and  services  is  guaranteed  by  the  Law  on 
Protection  from  Discrimination.  The  private  insurance  schemes  which  represent  the  third 
pillar of the social security system also fall under the scope of the services directive and are in 
compliance  with  its  equality  principles.  No  explicit  or  implicit  protection  is  provided  for 
transsexual people. 

Since the end of 2007, the LPFD allows differential treatment in the provision of goods 
and  services  in  accordance  with  EU  law  –  when  the  provision  of  the  goods  and  services 
exclusively or primarily to members of one sex is justified by a legitimate aim and the means 
of achieving that aim are appropriate and necessary. Maintaining proportionate differences in 
individuals'  premiums  and  benefits  is  no  longer  allowed  since  the  beginning  of  2013.
  Media  and  advertising  are  not  expressly  excluded.  Despite  this,  offensive,  sexist  and 
discriminatory advertisements, especially of some alcohol brands, are still distributed and left 
unpunished.  

7. Enforcement and compliance aspects 

The enforcement mechanisms are new for Bulgarian law and are not yet sufficiently effective, 
although  Bulgaria  has  achieved  a  good  level  of  harmonisation  with  the  formal  EU 
requirements. Persons whose rights are violated have access to the courts (with the application 
of the Civil Procedural Code, CPC) or to the Commission for Protection from Discrimination 
(with the application of the special procedure under the LPFD, the Administrative Procedural 
Code  and  the  CPC).  In  the  procedure  for  protection  against  discrimination  persons  who 
consider themselves to be victims of discrimination have to prove (instead of just establish) 
facts from which it may be presumed that there has been discrimination (Article 9 of the Law 
on Protection from Discrimination). Then the burden of proof falls upon the respondent and 
he/she has to prove that there has been no breach of the principle of equal treatment. Based on 
actual  practice  regarding  cases  of  discrimination  based  on  sex,  it  can  be  concluded  that  the 
lack of full compliance in the definition of the burden of proof is highly problematic for the 
protection of the rights of women.  

Persons who have or are supposed to have instigated an action against discrimination, or 

those who intend to instigate such an action, are explicitly protected against discrimination. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

59 

 
 
 
 
 
 
 
 
 
The  Commission  for  Protection  from  Discrimination  was  created  in  2005  as  an 
independent jurisdiction under the law, and its mandate covers all types of direct and indirect 
discrimination  prohibited  by  law  and  by  international  instruments  to  which  Bulgaria  is  a 
party. The Commission has broad competences, including initiating discrimination cases of its 
own  volition  and  assisting  the  victims  of  discrimination  in  bringing  a  claim.  The 
administrative  procedure  before  the  Commission  is  very  flexible  and  easy  to  follow  by  the 
petitioners. Upon the identification of a discriminatory act, the Commission has the power to 
impose fines. The latter are higher in cases of repeated acts of discrimination. The decisions 
of the Commission can be appealed before the Supreme Administrative Court. 

Discrimination  cases  can  be  brought  before  the  Commission  or  before  the  courts  but 
compensation  can  only  be  ordered  by  the  civil  courts.  The  procedure  for  awarding 
compensation  is  based  on  tort  law  provisions  and  principles.  The  general  level  of 
compensation,  as  well  as  compensation  awarded  for  discrimination,  is  still  very  low  in 
Bulgaria  and  is  not  proportionate  to  the  damage  suffered  by  the  persons  whose  rights  have 
been violated. The enforcement of sanctions is not effective and they do not have a dissuasive 
effect.  

A  positive  element  in  the  court  procedure  is  the  possibility  for  trade  unions  and  civil 
society organisations to join or initiate a discrimination case on behalf of a person who has 
been  discriminated  against.  When  the  rights  of  many  individuals  are  violated,  the 
organisations mentioned can initiate the discrimination procedure before the court. 

The Commission is not a body that deals with the promotion, monitoring or analysis of 
equal treatment based on sex and therefore does not yet fulfil all the requirements for equality 
bodies dealing with gender equality.  

The social partners in Bulgaria do not yet play an important role in the enforcement of 
gender equality law. Collective agreements that are binding for the respective sectors do not 
generally have gender equality elements and do not promote gender equality.  

8. Overall assessment  

The implementation of gender equality standards in Bulgaria is satisfactory and this is mainly 
due  to the adoption of  a comprehensive  anti-discrimination  law  and to  the  establishment  of 
the  Commission  for  Protection  from  Discrimination  (KZD).  However,  parental  leave 
provisions  have  to  be  made  effective  and  the  length  of  maternity  leave  should  be  more 
balanced to offer better possibilities for reconciliation. The protection of mothers and fathers 
returning  from  childcare  leave  and  parental  leave  should  be  strengthened  too.  The 
mechanisms for ensuring equal pay and for addressing the gender pay gap should be put in 
place.  The  protection  of  self-employed  persons  and  helping  spouses  must  be  explicitly  and 
further regulated. The definition of the burden of proof in the law and its effective application 
need  serious  improvement.  The  effectiveness  of  sanctions  and  the  level  of  compensation in 
cases of discrimination remain a serious issue and further developments in case law will be 
the driving force of improvement. In the case of the adoption of a special gender equality law, 
a  special  equality  body  will  be  established  and  the  enforcement  and  overall  protection  will 
improve  as  well.  Such  a  law  is  expected,  which  should  also  regulate  the  role  of  the  social 
partners in the enforcement of gender equality. 

The Bulgarian social security system is not compatible with the EU social security model 
and respective standards. The occupational social security schemes are part of the third pillar 
and  are  not  yet  developed.  The  second  pillar  in  Bulgaria  belongs  to  the  statutory  social 
security  but  the  insurance companies  managing  this  second tier  use  gender-related  actuarial 
factors. Discrimination in this second pillar should be eliminated. The Bulgarian second pillar 
(the additional obligatory contributions of persons born after 31 December 1959) belongs in 
practice  to  the  first  pillar.  The  discrimination  identified  with  the  use  of  gender  sensitive 
actuarial factors in the Bulgarian second pillar, is therefore in practice discrimination in the 
first pillar – statutory social security.  

60 

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CROATIA – Nada Bodiroga-Vukobrat 

1. Implementation of central concepts 

Croatian anti-discrimination legislation in general is based on the constitutional guarantee of 
equal rights and gender equality. Along with freedom, national equality, peace-making, social 
justice,  respect  for  human  rights,  inviolability  of  ownership,  conservation  of  nature  and  the 
environment,  the  rule  of  law  and  a  democratic  multiparty  system,  these  two  values  are  the 
highest  values  of  the  constitutional  order  and  grounds  for  interpretation  of  the  Constitution 
(Article 3 of the Croatian Constitution). All persons in the Republic of Croatia are guaranteed 
enjoyment  of  rights  and  freedoms  on  equal  footing,  with  an  open-ended  enumeration  of 
prohibited  discriminatory  grounds  (Article  14  of  the  Constitution).  Anti-discrimination 
legislation in Croatia includes special Acts, such as the Anti-Discrimination Act (ADA) and 
the Gender Equality Act (GEA), as well as anti-discriminatory provisions in other Acts, such 
as the Labour Act (LA), the Act on Forms of Same-Sex Cohabitation, the Criminal Code, the 
Constitutional  Act  on  the  Rights  of  National  Minorities,  etc.  The  first  Gender  Equality  Act 
was  adopted  in  2003  and  was  in  force  until  the  adoption  of  a  new  Gender  Equality  Act  in 
2008. On 1 January 2009, the Anti-Discrimination Act entered into force, as a horizontal Act 
in  the  field  of  equal  opportunities  which  includes  an  exhaustive  list  of  21  discriminatory 
grounds (gender, race, ethnic origin, skin colour, language, religion, political or other opinion, 
national or social origin, property, trade union membership, education, social status, marital 
or  family  status,  age,  health,  disability,  genetic  heritage,  gender  identity  and  expression,  or 
sexual orientation) and prescribes judicial protection in discrimination cases. It was amended 
in 2012 to remove any existing conceptual inconsistencies with the EU acquis in the field of 
gender equality.17 

The  concepts  of  direct  and  indirect  discrimination  are  aligned  with  the  relevant  EU 
directives  and  defined  nearly  identically  in  the  GEA  and  the  ADA,  with  some  grammatical 
discrepancies.  Direct  discrimination  means any  less  favourable  treatment  on  grounds  of  sex 
(GEA) or other discriminatory grounds (including sex, ADA) where one person is treated, has 
been  or  would  be  treated  less  favourably  than  another  person  in  a  comparable  situation.  In 
comparison,  the  Act  on  Forms  of  Same-Sex  Cohabitation  includes  only  past  and  present 
behaviour  within  the  definition  of  direct  discrimination.  Indirect  discrimination  under  the 
GEA  exists  where  a  neutral  provision,  criterion  or  practice  puts  persons  of  one  sex  at  a 
particular  disadvantage  compared  with  persons  of  the  other  sex,  unless  that  provision, 
criterion  or  practice  is  objectively  justified  by  a  legitimate  aim  and  the  means  of  achieving 
that aim are appropriate and necessary. This definition refers to the present condition (‘puts’), 
as  opposed  to  a  grammatically  more  precise  comparable  provision  from  the  ADA  (‘puts  or 
would  put’),  which  includes  also  future  hypothetical  situations  within  the  definition  of 
indirect discrimination. Although there is no case law which addresses this issue, it is highly 
unlikely that the courts would adhere to the strict grammatical interpretation of the provision 
from the GEA. 

The  GEA  introduces  the  concept  of  ‘specific  measures’,  as  temporary  benefits  for 
persons of one gender, which are not deemed as discrimination and whose aim is to achieve 
true gender equality in practice. They are laid down in laws and other regulations regulating 
specific areas of public life. The GEA contains general directions for the implementation of 
such  measures,  in  that  it  requires  that  those  measures  shall  serve  to  promote  equal 
participation of women and men in legislative, executive and judicial bodies, including public 
services, and to gradually increase the participation of the underrepresented sex in order for 
its representation to reach the level of its percentage in the total population of the Republic of 

17   Act on Amendments to the Anti-Discrimination Act (Zakon o izmjenama i dopunama Zakona o suzbijanju 
diskriminacije) Official Gazette of the Republic of Croatia (Narodne novine) No. 112/12. The amendments 
entered into force on 19 October 2012. 

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Croatia.18  Specific  measures  are  to  be  introduced  when  one  gender  is  ‘substantially 
underrepresented’.  Substantial  underrepresentation  of  one  gender in  decision-making  bodies 
in  political  or  public  life  exists  where  representatives  of  that  gender  account  for  less  than 
40 %.  This  provision  was  drafted  in  accordance  with  the  Council  of  Europe  Committee  of 
Ministers’  Recommendation  REC(2003)3  to  Member  States  on  balanced  participation  of 
women and men in political and public decision-making. In the area of employment, public 
administration  bodies  and  legal  persons  that  are  majority-owned  by  the  State  shall  apply 
specific  measures  and  adopt  action  plans  for  the  promotion  and  establishment  of  gender 
equality.19  Protection  of  women,  in  particular  in  relation  to  maternity  and pregnancy,  is not 
deemed to be discrimination.20 Specific temporary measures in relation to all discriminatory 
grounds from the ADA, which are necessary and appropriate for achievement of equality and 
which  are  based  on  laws,  by-laws,  programmes,  measures  or  decisions,  are  prescribed  as 
exceptions from discrimination in accordance with Article 9(2)(3) ADA. 

Instruction to  discriminate is regulated in the  GEA,  the  ADA  and the  Act  on  Forms  of 
Same-Sex  Cohabitation  under  the  broader  term  ‘incitement’  (Croatian:  poticanje)  to 
discriminate.  However,  there  are  discrepancies  between  the  GEA,  on the  one  hand,  and the 
ADA and the Act on Forms of Same-Sex Cohabitation, on the other. Namely, incitement of 
another person to discriminate is deemed as discrimination only if it is done intentionally.21 
An  equivalent  provision  was  contained  in  Article  4(1)  ADA  until  intent  was  erased  as 
constitutive element in the 2012 amendments to this Act. The justification for this amendment 
was found in the necessity to complete the transposition of Directives 2000/78 and 2000/43, 
which  do  not  mention  intent  either.  Intent  is  not  a  constitutive  element  of  incitement  to 
discriminate  under  the  Act  on  Forms  of  Same-Sex  Cohabitation  either.  The  definitions  of 
harassment  and  sexual  harassment  in  the  GEA  and  the  ADA  show  some  grammatical  and 
linguistic discrepancies, which should not, however, have any relevance for interpretation of 
their  scope.  The  ADA  literally  transposes  the  definition  of  harassment  from  Directives 
2000/43  and  2000/78,  but  it  also  includes  the  definition  of  sexual  harassment  aligned  with 
Directives 2004/113 and 2006/54. The definition of harassment and sexual harassment from 
the GEA refers to the creation of an ‘unpleasant’ rather than an ‘intimidating’ environment as 
a  result  of  harassment  or  sexual  harassment,  which  creates  a  necessity  for  extensive 
interpretation of these two concepts. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The  notion  of  ‘pay’  in  Croatian  labour  legislation  is  defined  in  the  context  and  for  the 
purposes  of  implementation  of  the  equal  pay  principle.  It  includes  the  basic  wage  and  any 
other consideration in cash or kind, which the worker receives directly or indirectly in respect 
of  his/her  employment  from  the  employer,  based  on  the  employment  contract,  collective 
agreement,  employment  rules  or  other  regulations  (Article  83(3)  LA22).  Pursuant  to  Article 
83(1) LA, an employer shall pay equal pay to women and men for equal work and work of 
equal value. Paragraph 2 of the same Article clarifies and describes what is understood under 
the concepts of equal work and work of equal value. It seems that the Croatian judiciary takes 
a predominantly formalistic approach in equal pay cases and overemphasises the importance 
of  a  comparator.  For  example,  the  claimant  will  be  required  to  prove  that  the  respondent 
should have treated him/her equally to another person in a comparable situation, whereby any 
difference  in  formal  requirements  overturns  comparability  (e.g.  where  a  job  classification 
system exists, any formal difference might exclude comparability). The performance of actual 
tasks will be relevant only where there is no legally prescribed salary classification system. 

18   Article 12(1) GEA.  
19   Article 11(1) GEA.  
20   Article 9(3) GEA.  
21   Article 6(5) GEA.  
22   Zakon o radu, Official Gazette of the Republic of Croatia Nos. 149/09, 61/11, 82/12 and 73/13. 

62 

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Otherwise, the employer will be found in breach of a specific obligation arising out of binding 
legislation or subordinate regulations if they disregard the salary classification system.23 

2.2. Access to work and working conditions 
Article  13  of  the  GEA  prohibits  any  gender-based  discrimination  in  employment  and 
occupation in accordance with Article 14(1)(a)-(d) of the Recast Directive 2006/54 but also 
extends it to cover discrimination in relation to the balance between a professional and private 
life  and  pregnancy,  giving  birth,  parenting  and  any  form  of  child  custody  rights.  Article 
8(1)(1) of the ADA defines its material scope of application in relation to work and working 
conditions, access to self-employment and occupation, including selection criteria, recruiting 
and  promotion  conditions;  access  to  all  types  of  vocational  guidance,  vocational  training, 
professional improvement and retraining. Article 9(2)(4) ADA transposes Article 14(2) of the 
Recast Directive by stipulating that if an otherwise discriminatory characteristic represents a 
genuine and determining condition for performing a certain job, which arises out of the nature 
of that job, it is deemed to be a derogation from the prohibition of discrimination, provided 
that  its  objective  is  legitimate  and  the  requirement  is  proportionate.  Since  the  ADA  is  a 
general  horizontal  Act  in  the  field  of  anti-discrimination,  this  exception  applies  to  all 
discriminatory  grounds  covered  by  it,  not  just  gender.  The  concept  of  positive  action  is 
transposed  in  the  more  neutral  meaning  of  ‘specific  measures’  designed  to  promote  true 
equality in practice (see explanation in Section 1). 

2.3. Occupational pension schemes 
The  ADA  and  the  GEA  do  not  differentiate  between  public  social  security  systems  and 
professional or occupational ones. Nevertheless, voluntary pension schemes financed by the 
employer  under  the  so-called  third  pension  pillar  are  an  example  of  occupational  pension 
schemes.  The  new  Act  on  Voluntary  Pension  Insurance  Funds24  specifically  refers  to  the 
transposition of Recast Directive 2006/54 and Directive 2010/41. It expands the provision on 
gender  equality  from  the  previous  Act  on  Compulsory  and  Voluntary  Pension  Insurance 
Funds,25 in that it requires that the application of the statutes of the closed voluntary pension 
funds shall not directly  or indirectly  cause any  differential treatment  of  men  and  women  or 
allow inequalities in rights from the voluntary pension insurance based on gender. Examples 
of  prohibited  differential  treatment  are  enumerated  in  a  non-exhaustive  manner  to  include 
access to  membership;  compulsory  or  optional  nature  of participation;laying  down  different 
rules  regarding  access  to  membership  or  the  minimum  period  of  membership  required  to 
obtain  the  benefits;settingdifferent  conditions  in  the  event  of  suspension  of  rights,  during 
maternity leave or taking care of children;different conditions applicable only to members of 
one  sex  upon  termination  of  membership;  etc.  This  provision  almost  verbatim  transposes 
Article  9(1)  (a)  to  (k)  of  Recast  Directive  2006/54.  As  always  when  such  approach  in 
transposition  is  used,  there  are  discrepancies  in  the  wording  that  may  result  unintentionally 
from  translation  and  simplification.  In  any  case,  only  practice  will  show  whether  true 
compliance with Article 9 of Recast Directive 2006/54 has been achieved, and what is ‘lost’ 
in translation should be interpreted in line with Recast Directive. For example, different rules 

23   For example, in case VS RH Revr-1676/09 the claimant asserted having been paid less for work of equal value, 

when she actually performed tasks of a higher skilled worker. The Court concluded that since the 
determination of salary in public services is prescribed by law (categories and coefficients), the respondent 
may only pay the claimant in accordance with her qualifications, because they would otherwise contravene the 
explicit and legally binding rule. See also the decision of the Constitutional Court, U-III/579/2008 of 15 April 
2010. In VS RH Revr-246/10 the formal job classification was deemed crucial for denying comparability. For 
a contradictory approach, see the ruling in equal pay case VS RH Revr-135/09, where it was concluded that the 
title of the job or its classification do not automatically give the right to be paid equally to another worker with 
the same job title, but that the pay depends on actual work and tasks performed by a particular worker. 
However, a difference in formal qualifications will overturn comparability and justify difference in pay. 

24   Zakon o dobrovoljnimmirovinskimfondovima, Official Gazette of the Republic of Croatia No. 19/14. 
25   Zakon o obveznim i dobrovoljnimmirovinskimfondovima, Official Gazette of the Republic of Croatia Nos 

49/99, 63/00,   103/03, 177/04, 71/07, 124/10, 114/11 and 51/13. 

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for  the  ‘reimbursement  of  contributions’  from  Article  9(1)(d)  of  the  Recast  Directive  are 
transposed as different rules in relation to ‘expected rights’ upon termination of membership 
in Article 183(2)(1) of the Act on Voluntary Pension Insurance Funds. This is a rather vague 
term  and  it  is  questionable  whether  it  includes  reimbursement  of  contributions  as  well. 
However, since Article 183(2) of the Act on Voluntary Pension Insurance Funds, like Article 
9(1) of Recast Directive 2006/54, contains ‘examples’ of discrimination, it calls for the widest 
possible  interpretation.  This  means  that  other  discriminatory  behaviour,  which  is  not 
expressly mentioned, could also be sanctioned. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  central  Act  which  regulates  pregnancy  and  maternity  protection,  parental  and  adoption 
leave  is  the  Act  on  Maternity  and  Parental  Benefits.26  In  line  with  the  Croatian  pro-natal 
family  policies,  the  wide  scope  of  beneficiaries  under  this  Act  includes  employed  persons, 
self-employed persons, farmers, persons with the recognised status of unemployed person and 
pensioners.  Rights  granted  to  the  mother  and  father  of  a  child,  adoptive  parent,  guardian, 
caretaker or any other natural person entrusted by the competent authority to take care of a 
child  take  the  form  of  time  off  from  work  (e.g.  maternity  leave,  parental  leave,  part-time 
work, breastfeeding leave, time off for ante-natal examinations, and adoption leave) as well as 
cash  benefits.  The  Act  was  last  amended  in  2013,  to  further  align  it  with  the  provisions  of 
Directives  92/85/EEC,  2010/18/EU  and  2010/41/EU.27  The  minimum  duration  of  parental 
leave was extended from three to four months for each employed or self-employed parent (i.e. 
parental leave is now eight instead of six months), of which two months are non-transferable 
to the other parent (usually the mother). The aim of this measure is to motivate fathers to take 
parental leave. Parental leave is 30 months for twins, and for the third and each consecutive 
child. The Act does not explicitly refer to the non-transferable two-months rule. It only states 
that both parents typically use 4 or 15 months of leave, depending on the number of children. 
According to the practice of the Croatian Institute for Health Insurance (CIHI), the fact that 
the duration of parental leave is 6 months when only one parent uses the leave makes it clear 
that 
this 
(non)transferability  when  it  comes  to  parental  leave  for  twins,  and  for  the  third  and 
consecutive children. Adoption leave is granted for a period of six months, regardless of the 
age  of  the  adopted  child.  Length  of  service  qualification  for  cash  allowance  (salary 
compensation)  for  employed  or  self-employed  parents  is  a  minimum  of  12  months  of 
uninterrupted  service  or  18  months  with  interruptions  in  the  last  two  years.  Otherwise,  a 
person is entitled to an allowance of 50 % of the average calculation base (Article 24(8) of the 
Act on Maternity and Parental Benefits). 

two  months  are  non-transferable.  However, 

there  is  no  explanation  for 

Specific  prohibition  of  pregnant  women  in  labour  relations  is  prescribed  in  the  LA, 
ranging from access to employment and working conditions to termination of the employment 
relationship. An employer must not refuse employment to a woman nor dismiss her because 
she is pregnant, nor ask any information about her pregnancy, unless the pregnant worker is 
personally  seeking  to  acquire  a  certain  pregnancy-related  right  (Article  68(1)  and  (2)  LA). 
Pregnant  women  or  women  who  are  breastfeeding  are  entitled  to  be  transferred  to  another 
appropriate  position  at  their  request,  whereas  the  employer  is  obligated  to  transfer  them  to 
another  appropriate  position  if  the  health  of  the  woman  or  the  child  is  endangered.  In  both 
instances,  the  new  position  shall  be  at  least  equally  paid.28  The  absolute  ban  of  dismissal 
applies  during  pregnancy,  maternity/parental/adoption  leave,  part-time  work,  work  with 
reduced  working  hours  due  to  increased  care  for  a  child,  leave  of  absence  of  a  pregnant 
woman or breastfeeding mother, leave of absence or work with reduced working hours due to 

26   Zakon o rodiljnim i roditeljskim potporama, Official Gazette of the Republic of Croatia Nos. 85/08, 110/08, 

34/11 and 54/13. 

27   Zakon o izmjenama i dopunama Zakona o rodiljnim i roditeljskim potporama, Official Gazette of the Republic 

of Croatia No. 54/13. 

28   Article 69 LA.  

64 

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care  for  a  child  with  developmental  disabilities,  and  during  15  days  after  termination  of  a 
pregnancy  or  any  of  those  rights.29  However,  all  these  circumstances  do  not  prevent  the 
expiration of a fixed-term contract (Article 71(3) LA). 

less 

The  LA  prescribes the  right  of  the  worker  to  return to  the  previous  or  to  an equivalent 
post (if the necessity for the previous job in the meantime has ceased to exist) on terms and 
conditions  which  are  no 
the  end  of 
maternity/parental/adoption  or  other  forms  of  childcare  leave  (Article  73(1)  LA).  The 
Constitutional  Court  ruled  that  where  a  person  was  not  returned  to  the  previous  or  an 
equivalent post (where another person filled that post and there were no equivalent posts due 
to  restructuring)  after  maternity  leave,  this  constituted  an  infringement  of  the  constitutional 
right to equality and the right to work.30 The worker is also entitled to additional vocational 
training and to benefit from any improvement in working conditions.31 

that  worker  after 

favourable 

to 

There is an inconsistency between the Labour Act and the Act on Maternity and Parental 
Benefits  regarding  night  work  of  pregnant  workers,  and  workers  who  have  recently  given 
birth or are breastfeeding. Namely, the latter Act is in line with Directive 92/85, whereby the 
workers  concerned  may  be  exempted  from  night  work  subject  to  submission  of  a  medical 
certificate, whereas under the Labour Act they are required to submit a medical certificate in 
case they would like to do night work. 

The latest amendment of the Occupational Safety and Health Act was adopted to finalise 
harmonisation  with  Directive  92/85.32  It  now  prescribes  in  detail  the  obligations  of  the 
employer to take the measures necessary to protect pregnant workers and workers who have 
recently given birth or are breastfeeding against health or safety risks at work.  

4. Statutory schemes of social security 

Although  there  are  no  specific  guarantees  of  equal  treatment  in  legislative  instruments 
regulating  social  security  benefits  (i.e.  the  Pension  Insurance  Act,  the  Statutory  Health 
Insurance  Act,  the  Act  on  Employment  Mediation  and  Unemployment  Benefits,  etc.),  the 
general provisions of the GEA and the ADA cover this field and fully implement Directive 
79/7.  Between  2010  and  2030,  the  different  pensionable  ages  for  male  and  female  workers 
and  self-employed  persons  (currently  the  only  exception  from  Directive  79/7  in  Croatian 
legislation)  will  be  gradually  equalised  and  the retirement  age  increased  from  65  to  67  (for 
both  sexes)  by  2038.33  The  right  of  women  to  continue  working  even  after  reaching  the 
currently  prescribed  retirement  age  for  women  (until  reaching  the  retirement  age  currently 
prescribed  for  men)  has  been  confirmed  in  a  judgment  of  the  County  Court  in  Varaždin.34 
Examples  of  less  favourable  positions  of  women  in  statutory  sickness  insurance  in  practice 
include lower salary compensation for sickness, when a women takes sick leave (e.g. to take 
care  of  a  sick  child)  in the  six  months  after  her  return  from  parental leave. This  is  because 
sickness  benefits  are  calculated  in  the  range  of  100  %  to  70  %  of  a  calculation  base  –  the 
average  salary  paid  in  the  six  months  prior  to  the  month  in  which  sick  leave  is  taken, 
depending  on  the  reason  for  sick  leave.  However,  the  calculation  base  for  the  sickness 
benefits of a woman who returns from parental leave and who takes sick leave to take care of 
a sick child under three will include the average amount of cash allowances received during 
parental leave (which cannot be more than 80 % of the calculation base, i.e. currently around 
EUR 355 (HRK 2 660), resulting in much lower sickness benefits than those calculated from 

29   Article 71(1) LA.  
30   Constitutional Court, U-III/5/2007 of 29 October 2009. 
31   Article 73(3) LA.  
32   Zakon o izmjenama i dopunama Zakona o zaštiti na radu, Official Gazette of the Republic of Croatia 

No. 143/12. 

33    Zakon o mirovinskom osiguranju, Official Gazette of the Republic of Croatia No. 157/13. 
34   County Court Varaždin, Gž-473/03 of 20 December 2002. One of the grounds for termination of employment 
contract under the LA is when a worker (male or female) reaches the age of 65 and 15 years of service, unless 
the parties agree otherwise. Therefore, a female worker reaching the statutory retirement age for women is 
entitled to retire, but may not be forced by the employer to do so (as is often the case in practice).  

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65 

 
 
 
 
 
                                                      
the average salary. Since only around 3 % of fathers take parental leave, female workers are 
usually more affected by this provision. 

5. Self-employed persons 

The  status  of  self-employed  parents  regarding  maternity/parental  rights  is  equal  to  that  of 
parents  who  are  employees  (Article  9(1)  of  the  Act  on  Maternity  and  Parental  Benefits), 
provided  that  they  have  the  status  of  insured  person  in  the  compulsory  health  and  pension 
insurance.  Self-employed  parents  within  the  meaning  of  the  Act  on  Maternity  and  Parental 
Benefits  include  persons  who  themselves  perform  certain  activities.  Consequently,  the 
position  of  female  spouses  of  self-employed  workers  (including  non-marital  spouses)  is 
determined  according  to  their  own  employment,  self-employment,  unemployment  or  other 
status  within  the  meaning  of  the  Act  on  Maternity  and  Parental  Benefits.  Under  the  Crafts 
Act35  (Article  30)  members  of  the  craftsman’s  family  (spouse,  children,  parents,  adoptive 
parents,  adopted  children,  children  of  a  spouse  and  other  dependent  family  members)  are 
entitled  to  help  the  craftsman  with  the  performance  of  his  activities  (without  having  to  be 
employed  by  him).  However,  there  is  no  provision  granting  the  spouses  of  self-employed 
workers social protection or maternity benefits based exclusively on this family relationship. 
These  entitlements  are  provided  in  accordance  with  their  personal  status  in  the  statutory 
insurance (i.e. pension, sickness, unemployment). 

6. Goods and services 

Both the ADA and the GEA implement Directive 2004/113 within their respective fields of 
application. Both Acts also go beyond the scope of application of this Directive. Article 6(1) 
GEA  generally prohibits any form of  gender discrimination in practically all spheres of life 
(with  further  provisions  specifically  referring  to  media  and  education),  whereas  Article 
8(1)(8) ADA specifically refers to the access to and supply of goods and services. The latter 
also  explicitly  mentions  that  it  is  aligned  with  Directive  2004/113  (Article  1.a  ADA). 
Exceptions to the general prohibition of discrimination on particular discriminatory grounds 
(Article 9 ADA) were amended and redefined in 2012. A provision which stipulated that the 
differences in premiums and benefits where the use of sex was a factor of calculation was not 
deemed  to  be  discrimination  was  removed  with  effect  from  30  June  2013,  in  view  of  the 
decision of the Court of Justice of the EU in Test-Achats.36 Age as a factor of calculation still 
remains  an  acceptable  exception  (Article  9(2)(6)  ADA).  In  addition,  any  less  favourable 
treatment in the access to and supply of goods and services and sports shall not be deemed 
discriminatory,  if  the  provision  of  the  goods  and/or  services  is  reserved  exclusively  or 
primarily to members of one sex or persons with disabilities, provided that such treatment is 
objectively and reasonably justified by a legitimate aim and the means of achieving that aim 
are appropriate and necessary. 

7. Enforcement and compliance aspects 

Victimisation in relation to sex discrimination and other discriminatory grounds is prohibited 
within the material scope of application of the GEA and the ADA respectively. Article 2 of 
the  GEA  provides  that  no  one  shall  suffer  adverse  treatment  for  giving  a  statement  before 
competent bodies as a witness or victim of sexual discrimination or for alerting the public to 
sexual  discrimination.  Article  7  of  the  ADA  provides  protection  against  victimisation  in  a 
more  detailed  manner,  specifically  mentioning  reporting  or  witnessing  discrimination, 

35   Zakon o obrtu, Official Gazette of the Republic of Croatia No. 143/2013. 
36   Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

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refusing to comply with the discriminatory order or participating in any other proceedings in 
connection with discrimination. 

The wording of the two main anti-discrimination laws in Croatia, the ADA and the GEA, 
on the burden of proof slightly differs, which may lead to inconsistent interpretation. Under 
Article 20 ADA, a party claiming discrimination does not have to prove it with any degree of 
certainty  –  it  suffices  to  establish  probability  (Croatian:  učiniti  vjerojatnim)  that  the 
discrimination occurred (‘shall make it plausible that discrimination has taken place’), while 
the respondent has to prove the opposite with sufficient degree of certainty. Failing this, it is 
considered  that  the  right  to  equal  treatment  was  violated.37  In  two  Supreme  Court  cases 
Gž-25/11  and  Gž-41/11  (involving  discrimination  based  on  sexual  orientation)  the  rules  on 
the burden of proof were interpreted so as to shift the burden of proof to prove that there had 
been  no  discrimination  by  the  respondent,  when  the  meaning  of  the  statements  made  was 
obvious in itself (degradation and humiliation).38 This interpretation seems to come close to 
the burden of proof provision from the GEA, although its wording is formulated much more 
broadly. According to Article 30(4) GEA a party claiming that his/her right has been violated 
has to present facts which raise the suspicion that discriminatory behaviour has occurred; the 
burden  of  proof  then  shifts  to  the  opposing  party  who  has  to  prove  that  there  has  been  no 
discrimination. Theoretically, this is an even lighter burden than proving the probability under 
the ADA. 

A  victim  of  discrimination  is  entitled  to  seek  damages  in  accordance  with  the  general 
provisions  for  compensation  of  damages.  The  GEA  and  the  ADA  prescribe  sanctions  for 
violations  of  its  provisions  (punishable  as  a  misdemeanour)  in  the  form  of  monetary  fines. 
Sexual harassment is also punishable under the Criminal Act (Article 156).  

Apart  from  special  legal  action  for  the  protection  against  discrimination,  the  ADA 
authorises  any  person  who  claims  that  his/her  rights  have  been  violated  as  a  result  of 
discrimination to seek protection in proceedings deciding upon that right as the main issue.39 
The  GEA  authorises  any  party  who  considers  that  her/his  rights  have  been  violated  due  to 
discrimination described in that Act to file a legal action before the regular court of general 
jurisdiction,40 in other words, to initiate litigation before a municipal court. Pursuant to Article 
24(1) ADA, associations, bodies, institutions or other organisations set up in accordance with 
the law and having a justified interest in protecting collective interests of a certain group, or 
those  which  within  their  scope  of  activities  deal  with  the  protection  of  the  right  to  equal 
treatment,  may  bring  a  legal  action  against  a  person  that  has  violated  the  right  to  equal 
treatment. Representative action is a collective remedy available under the GEA as well, but 
the general conditions are prescribed in the ADA. So far, it has predominantly been used by 
associations fighting against discrimination based on sexual orientation.41  

Enforcement  of  the  GEA  is  entrusted  to  the  Office  for  Gender  Equality  and  the 
Ombudsperson for gender equality, as well as other bodies at regional and local levels. The 
office for Gender Equality is a technical service of the Government for the implementation of 
activities  related  to  the  enforcement  of  gender  equality.  The  Ombudsperson  for  gender 
equality is an independent body in charge of combating discrimination in the field of gender 
equality. Its tasks include receiving complaints of and providing assistance to natural persons 

37   Whereas the first-instance court in this case found that the probability of discrimination requirement had not 
been satisfied, the appellate court was of the opinion that it was enough for the claimant in a representative 
action to present the respondent’s statement to the court and concluded that the ‘purposive meaning of that 
statement was evident in itself: humiliation and degradation of that category of persons’. The claimant showed 
with probability that discrimination of the target group occurred as a result of that statement, which was 
enough for the burden of proof to shift to the respondent.  

38   In both cases, which share the same factual background, the first-instance courts concluded that the claimants 
did not make discrimination plausible, i.e. did not show probability that the respondent's statement had caused 
direct discrimination. See judgments of the County Court in Zagreb Pnz-8/10 and Pnz-7/10. There are no 
similar reported cases on the burden of proof involving gender discrimination. 

39   Article 16(1) ADA.  
40   Article 30(1) GEA.  
41   See for example County Court in Zagreb Pnz-8/10 and Pnz-7/10. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

67 

 
 
 
 
 
                                                      
or legal entities in the field of gender discrimination, investigating individual complaints prior 
to the legal proceedings and conducting mediation processes with the consent of the parties, 
as  well  as  collecting  and  analysing  statistical  data  on  cases  of  sexual  discrimination  and 
conducting  independent  surveys  concerning  discrimination,  publishing  independent  reports 
information  with  corresponding  European  bodies.  State 
and  exchanging  available 
administrative bodies are obliged to appoint a gender equality coordinator. Local and regional 
self-government units are required to establish committees for gender equality. 

Social partners are obliged to comply with the provisions of the GEA and measures for 
achievement  of  gender  equality  when  conducting  collective  negotiations  and  concluding 
collective  agreements  (CAs)  at  all  levels.  CAs  are  binding  on  their  parties.  The  general 
conclusion from the analysis of the CAs in view of gender equality, equal opportunities and 
work-life balance conducted by the Ombudsperson for gender equality in 2009 is that social 
partners need further instructions regarding the legal framework for equal treatment and equal 
opportunities, given that many CAs themselves contain provisions that generate inequalities 
based on sex.42 Out of 120 CAs analysed, only seven contained provisions on equal pay and 
only  in  a  general  manner.  The  monitoring  mechanisms  for  this  obligation  are  completely 
lacking.  Pursuant  to  the  ADA,  the  Public  Ombudsman  shall  consult  social  partners 
(representative associations of trade unions and employers of a higher level) and civil society 
organisations  when  drawing  up  regular  reports,  opinions  and  recommendations  on  the 
occurrence  of  discrimination.  The  Ombudsperson  for  gender  equality  has  no  equivalent 
obligation. 

8. Overall assessment 

The  EU  gender  equality  acquis  in  general  has  been  properly  transposed  in  the  existing 
legislative  instruments.  However,  the  two  horizontal  acts  (GEA  and  ADA)  may  cause 
confusion,  since  there  are  discrepancies  between  them  regarding  the  definitions  of  the  key 
legal  concepts  (i.e.  discrimination,  harassment,  burden  of  proof,  etc.).  The  proper 
implementation  in  actual  practice  takes  time.  It  is  still  hard  to  evaluate  the  capacity  of  the 
national  judiciary  to  apply  gender  equality  law.  The  case  law  in  this  field  is  still  scarce, 
despite the fact that gender continuously ranks among the top three of discriminatory grounds, 
according to various studies. 

CYPRUS – Lia Efstratiou-Georgiades 

1. Implementation of central concepts 

Equality  between  men  and  women  is  safeguarded  by  the  Constitution  of  the  Republic  of 
Cyprus.  Article  28(1)  of  the  Constitution  prohibits  any  direct  or  indirect  discrimination 
against any person, inter alia, on grounds of sex (Article 28(2)). The main concepts of the EU 
gender equality acquis have gradually been embodied in Cypriot legislation. 

The following Laws have transposed into national legislation the provisions of Directives 
75/117/EEC,  2002/73/EC  and  86/378/EEC  and  the  provisions  of  Recast  Directive 
2006/54/EC: 
–  Equal  Pay  between  Men  and  Women  for  the  Same  Work  or  for  Work  to  which  Equal 
Value is Attributed Law No. 177(I)/2002 transposed Directive 75/117/EEC. Amendment 
Law No. 38(I)/2009 transposed relevant provisions of the Recast Directive; 

–  Equal Treatment of Men and Women as regards Access to Employment and Vocational 
Training  Law  No.  205(I)/2002  transposed  Directive  2002/73/EC.  Amendment  Law  No. 
39(I)/2009 transposed relevant provisions of the Recast Directive;  

42   http://www.prs.hr/index.php/analize-i-istrazivanja/obrazovanje-3/180-analiza-kolektivnih-ugovora, accessed 

3 June 2013. 

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–  Equal  Treatment  of  Men  and  Women  in  Occupational  Social  Insurance  Schemes  Law 
No.  133(I)/2002  transposed  Directive  86/378/EEC.  Amendment  Law  No.  40(I)/2009 
transposed relevant provisions of the Recast Directive.  

Law  No.  205(I)/2002  as  amended  by  Law  No.  39(I)/2009  includes  the  definition  of  the 
concepts  of  direct  and  indirect  discrimination  on  the  ground  of  sex,  of  harassment  and  of 
sexual  harassment,  which  are  the  same  as  in  the  relevant  directives.  Positive  action  is 
expressly permitted in these laws, but the laws do not mention any special measures. The laws 
prohibit instruction to discriminate. 

The  provisions  of  the  above  laws  have  satisfactorily  transposed  the  relevant  directives. 
There are no cases on the matters covered by the laws, except the cases related to pregnancy, 
child-birth, motherhood or illnesses caused by pregnancy or childbirth.  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
Law No. 177(I)/2002 as amended by Law No. 38(I)/2009 requires employers to apply equal 
pay for men and women for the same work or for work of equal value. The purpose of the 
Law is to ensure the principle of equal pay between men and women for the same work or for 
work of equal value. It prohibits any discrimination on the ground of sex as regards all terms 
and conditions of pay for the same work or for work of equal value.  

The  Law  abolished  all  direct  or  indirect  discrimination  between  men  and  women  that 
appeared in collective agreements or individual contracts of employment. References to male-
female positions in collective agreements and contracts have been abolished. Employers are 
obliged to take all proper measures which promote equality between men and women and also 
to  promote  social  dialogue,  provisions  which  are  relevant  to  Article  157  TFEU.  The 
maximum rights enjoyed by one sex shall also apply to the other sex. 

The Law covers all categories of employees, men and women, for all activities related to 
employment, who work or undergo training at work as apprentices on a full-time or part-time 
basis, for a fixed term or for an indefinite period, irrespective of the place of employment, but 
not including the self-employed. In the public and semi-public sectors equal pay is applied to 
all  jobs  and  levels.  Unfortunately,  most  employers  in  the  private  sector  do  not  have  job 
classification  or  job  description  schemes  nor  have  they  conducted  an  evaluation  of  every 
profession or post for the purpose of defining what is the same work or work of equal value. 
  Where a system of professional classification is used for the determination of pay, such a 
system  must  be  based  on  common  criteria  for  all  employees,  men  and  women  and  must 
exclude  any  discrimination  based  on  the  ground  of  sex  (Article  5(1)  and  (2)  of  the  above 
Law). 

Amendment  Law  No.  38(Ι)/2009  transposed  Directive  2006/54/ΕC  and  rephrased 
articles,  also  for  the  purposes  of  implementing  Article  20  of  the  Revised  European  Social 
Charter. 

The Law authorises the Minister of Labour and Social Insurance to fix minimum wages 

for a limited number of low-paid jobs by issuing an order.  

The  Law  does  not  affect  the  provisions  of  the  Protection  of  Maternity  Law  No. 
100(I)/1997,  as  amended  or  the  provisions  of  the  Parental  Leave  and  Leave  on  grounds  of 
Force Majeure Law No. 69(I)/2002, as amended. 

Amendment  Law  No.  38(Ι)/2009  also  provides  that  ‘Pay  includes  the  usual  basic  or 
minimum wages or emoluments and any other additional benefits, paid directly or indirectly, 
either  in  money  or  in  kind,  by  the  employer  to  the  employee,  based  on  the  employment 
relationship’. Furthermore, this Law obliges employers to give information to employees or 
their  trade  union  about  equality  of  wages,  including  the  percentage  of  men/women  at  the 
various levels of the business, of any differences in wages and possible measures to improve 
the situation in cooperation with the unions. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

69 

 
 
 
 
 
 
 
 
 
 
 
2.2. Access to work and working conditions 
Law  No.  205(I)/2002 as  amended  by  Law  No.  39(I)/2009  includes  provisions which  ensure 
the  implementation  of  the  principle  of  equal  treatment  between  men  and  women  without 
direct or indirect discrimination, specifically in the field of access to employment, terms and 
conditions of employment, dismissal and vocational training.  

The  Law  covers  all  workers  (men  and  women)  who  work  under  a  contract  of 
employment,  either  fixed-term  or  for  an  indefinite  period,  either  full-time  or  part-time.  The 
Law has excluded from its scope of application those occupational activities where the sex of 
the  worker  constitutes  a  determining  factor  and  specifies  reasons  for  the  exclusion  of  such 
activities. The Law also lists occupations falling within this latter category, i.e. home care of 
old or disabled persons, prison guards, private security bodies, and artistic performers. 

2.3. Occupational pension schemes 
In  Cyprus  there  is  a  clear  distinction  between  statutory  pension  schemes  and  occupational 
pension  schemes.  The  occupational  pension  schemes  cover  employees  in  the  public  service 
and in the broader  public sector.  Also,  under the  category  of  occupational  pension schemes 
fall the voluntary provident fund schemes and other similar pension schemes. 

Occupational  pension  schemes  provide  for  benefits  in  case  of  old  age,  including  early 
retirement,  death,  the  interruption  of  employment  due  to  maternity,  sickness  or  invalidity, 
industrial accidents and occupational diseases. 

Under  all  occupational  pension  schemes  men  and  women  enjoy  equal  treatment,  as 
provided  in  the  Equal  Treatment  for  Men  and  Women  in  Occupational  Social  Insurance 
Schemes Law No. 133(I)/2002 as amended by Law No. 40(I)/2009.  
There are no exceptions. 

In  the  private  sector  the  majority  of  employees  are  covered  by  Provident  Funds,  in 

addition to their coverage under the Statutory Schemes of Social Security (see below). 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Protection  of  Maternity  (Amendment)  Law  No.  64(Ι)/2002  harmonised  the  Law  with 
Directive  92/85/EEC.  The  most  recent  amendment  of  the  Law  by  Protection  of  Maternity 
(Amendment)  Law  No.  70(I)/2011  was  adopted  in  order  to:  a)  harmonise  Cypriot  law  with 
Article  10  of  Directive  92/85/EC,  b)  provide  that  for  adoption  of  a  child  under  the  age  of 
twelve, the maternity leave is 16 weeks (for natural mothers it is 18 weeks), c) provide that a 
pregnant woman is entitled to paid time off work for antenatal examinations, and d) provide 
for  extension  of  maternity  leave  in  cases  where  the  baby  needs  to  stay  in  an  incubator  for 
additional days due to premature birth or any other health reason. During the maternity leave, 
the mother receives a maternity allowance under the Social Insurance Regulations. Dismissal 
or notice of termination of services is not allowed during the period from the beginning of the 
pregnancy when the worker gives a written notice to her employer that she is pregnant, up to 
three  months  after  the  end  of  her  maternity  leave.  Termination  of  services  and/or  notice  of 
termination of services to a pregnant worker when the employer is not aware of her pregnancy 
is  revoked,  if  the  worker  presents  a  medical  certificate  within  five  days  from  the  day  the 
notice was given to her.  

Dismissal  or  giving  notice  of  termination  of  services  is  not  allowed  for  an  adoptive 
mother, from the time she gives a certificate from the Social Welfare Services to her employer 
that  she  will  take  care  of  the  child  for  adoption,  up  to  three  months  after  the  end  of  her 
maternity leave.  
  Maternity leave must not affect employment rights such as rank and position, seniority or 
the right to promotion or to return to the same or comparable job. 

The  Parental  Leave  and  Leave  on  grounds  of  Force  Majeure  Law  Νο.  47(Ι)/2012 

harmonised national law with Directives 2010/18/ΕC and 97/80/ΕC. 

The  Law  applies  to  all  workers,  men  and  women,  who  have  completed  six  months  of 
continuous employment with the same employer, including workers on a part-time basis, on 
fixed-term employment contracts or on a contract or employment relationship of a temporary 

70 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
 
nature. In case of successive fixed-term contracts, all such contracts with the same employer 
are taken into consideration for the calculation of the six-month period. 

Any employee parent is entitled to take unpaid parental leave for a maximum of eighteen 
(18) weeks in total for the birth or adoption of a child, in order for the parent to take care of 
and participate in the raising of the child, up to the child’s eighth birthday. If the parent is a 
widow or widower the leave is 23 weeks. It is possible to transfer two weeks from one parent 
to the other. 

The  minimum  period  of  parental  leave  per  year  is  one  week  and  the  maximum  is  five 
weeks. At the end of the parental leave the worker is entitled to return to work in the same or 
similar  post  and  all  his/her  rights  are  safeguarded.  An  employee  may,  upon  return  from 
parental  leave,  request  changes  in  the  timetable  and/or  organisation  of  his  work  for  a  fixed 
period. An employee is entitled to seven days off work per year without pay on grounds of 
force majeure for urgent family reasons. 

The provisions in the national laws do not exceed the requirements of EU law. In Cyprus 
little use is made of parental leave and time off, which are unpaid. There is no paternity leave. 

4. Statutory schemes of social security 

The General Social Insurance Scheme (GSIS) falls under Directive 79/7/EEC and covers all 
persons gainfully occupied in Cyprus, either as employed or self-employed persons.  

The  current  pension  system  in  Cyprus  includes:  The  General  Social  Insurance  Scheme 
(GSIS), the Social Pension Scheme (SPS), the Special Allowance to Pensioners Scheme, the 
Public Assistance Scheme, the Occupational Pension Schemes of employees of the public and 
broader  public  sector  and  the  Voluntary  Provident  Funds  and  other  similar  collective 
arrangements. 

The  GSIS  covers  the  following  branches  of  social  security:  old-age  pension,  widow's 
pension,  sickness  allowance,  unemployment  allowance,  employment  injury  allowance, 
maternity  allowance,  invalidity  pension,  orphan’s  benefit,  marriage  grant,  funeral  grant  and 
maternity grant. 

A number of elements in the GSIS that did discriminate against women in the past have 
been removed  in the  course  of  the process  of  harmonisation  of the  relevant  legislation  with 
European  Law.  Discrimination  exists  in  relation  to  widowhood.  There  is  no  widower’s 
pension, except when a widower is permanently incapable of self-support.  

There  is  discrimination  between  unmarried  and  married  women  in  cases  in  which  both 
are not insured and give birth to one or more children. An unmarried woman is not entitled to 
receive  a  maternity  grant,  whereas  a  married  woman  is  entitled  to  this  grant  due  to  her 
husband’s participation in the GSIS. 

5. Self-employed persons 

Directive  2010/41/EU  relating  to  the  principle  of  equal  treatment  between  men  and  women 
who  are  self-employed  has  been  implemented  through  Social  Insurance  (Amendment)  Law 
No.  59(Ι)/2010  and  Equal Treatment  of  Men  and  Women  in  Occupational  Social  Insurance 
Schemes (Amendment) Law No. 40(Ι)/2009, which is based on the Recast Directive. 

According  to  Articles  24,  29  and  30  of  the  Social  Insurance  (Amendment)  Law  Νo. 
59(Ι)/2010,  self-employed  women  are  entitled  to  maternity  allowance  for  a  period  of  18 
weeks  and  in  case  of  adoption for  a  period  of  16  weeks.  A  person  who  is  employed  in  the 
service of his/her spouse is insured as a self-employed person. Cohabiting partners are not yet 
recognised  under  Cyprus  national  law.  The  Social  Insurance  Law  provides  for  maternity 
allowance and social protection to women who are self-employed as well as to the wives of 
self-employed workers, as stipulated in Articles 2, 7 and 8 of Directive 2010/41/ΕU. It should 
be  noted  that  in  Cyprus  maternity  allowance  started  to  be  granted  to  beneficiaries  by  the 
Social Insurance Services as from 1983. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

71 

 
 
 
 
 
 
 
 
 
 
 
 
 
  
6. Goods and services 

All  Articles  of  Directive  2004/113/EC  have  been  incorporated  in  the  Equal  Treatment 
between Men and Women as regards Access to and the Supply of Goods and Services Law 
No. 18(I)/2008. The Law applies to all persons who supply goods and services to the public, 
both in the public and private sector, and outside private and family life. The Law does not 
apply in education, in the mass media and in advertisements, in employment and in vocational 
activities. The Law provides for a general prohibition of discrimination on the ground of sex. 

In December 2007 the Superintendent of Insurance decided to allow a postponement for 
up to two years for the prohibition of a difference between personal insurance premiums and 
grants  on  the  grounds  of  pregnancy  and  maternity  (Article  7(5)  of  the  above  Law).  The 
Superintendent  of  Insurance,  on  the  basis  of  the  decision  of  the  CJEU  in  the  Test-Achats 
case,43  has  submitted  a  draft  bill  to  the  Ministry  of  Justice  and  Social  Order  in  which 
suggestions are made for amending Law No. 18(Ι)/2008 including the deletion of Article 7(5). 
The  bill  is  ready  for  submission  to  the  Council  of  Ministers  for  approval  and  then  to 
Parliament for enactment into law. 

The  Equal  Treatment  between  Men  and  Women  as  regards  Access  to  and  Supply  of 
Goods  and  Services  Law  No.  18(I)/2008  was  amended  by  Law  No.  89(I)/2013  in  order  to 
comply with the interpretation by the CJEU in Test-Achats. In particular, Article 7 of Law No. 
18(I)/2008 was amended by adding to Section 2 a provision that Section 1 (which prohibits 
discrimination  on  the  ground  of  sex  in  insurance  contracts  that  leads  to  differences  in 
calculating  premiums  and  benefits),  applies  to  all  new  insurance  contracts  as  from  21 
December 2012. 

The Amendment Law No. 89(I)/2013 added to Article 7(2) Appendix I, which provides 
that  as  new  insurance  contracts  are  considered  those  contracts  which  were  entered  into  as 
from 21 December 2012. It also added Appendix Β, listing cases that are not considered as 
new insurance policies: 
1.   The extension of an existing contract.  
2.   Adjustments effected in parts of an existing contract, e.g. changes for which the insurer's 

consent is not needed.  

3.   Additional  coverage  and/or  extensions  and/or  renewals  which  occurred  prior  to  21 
December 2012. The transfer of a portfolio from one insurance broker to another without 
altering its cover. 

It also added Appendix II, Article 7(3), which provides an indicative list of cases where the 
collection,  storing,  and  use  of  information  concerning  gender  or  related  to  gender,  are 
allowed. 
(a)  Regarding  the  mixture  of  their  portfolio,  in  reference  and  with  respect  to  the  pricing 
model meeting the insurance solvency criteria and risk, insurance brokers are allowed to 
compile and use information regarding gender. This pricing model shall also consider the 
accruals and internal invoicing costs.  

(b)  According  to  and  regarding  the  reinsurance  invoicing  model,  as  there  are  no 

differentiations based on gender.  

(c)  Regarding  promotional  and  targeted  (gender)  advertising,  and  as  such  cannot  decline 
access to an offered product or service, except in cases where there are pregnancy-related 
and  maternity-related  costs.  However,  these  cannot  lead  to  differences  in  individual 
premiums and services (7(5)). 

(d)  For  medical  insurance  coverage  including  death,  the  insurance  brokers  can  compile, 
analyse and use factors, including inherited historical data and information. It is possible 
to take into account the determinant, allowing for small variations based on gender.  

43   Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

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Furthermore  Article  7(5)  independent  of  the  conditions  as  stated  above  and  7(1)(2)(3)(4), 
prohibits differences in independent premiums and services solely justified on pregnancy and 
maternity costs alone.  

7. Enforcement and compliance aspects 

Generally,  in  the  Cypriot  legal  system,  the  burden  of  proof  in  civil  cases  is  based  on  the 
balance of probabilities. In criminal cases the guilt of the defendant must be proved beyond 
reasonable doubt. In cases brought before the Industrial Tribunal the burden of proofrests with 
the  defendant.  So  the  employer  has  the  burden  of  proof  to  establish  that  the  dismissal  or 
termination  of  services  was  justifiable. The  Industrial  Tribunal  has jurisdiction  to  deal  with 
labour disputes in the private sector and in semi-government organisations. 

In the public sector an employee can have recourse to the Supreme Court (Administrative 
Section) regarding a complaint that a decision, act or omission of an administrative organ is 
contrary to any provision of the Constitution or of any law. The employee must prove that any 
such  decision,  act  or  omission  has  adversely  and  directly  affected  his  existing  legitimate 
interest (Article 146 of the Constitution). 

Recently, three different laws were amended in relation to the burden of proof: Law No. 
150(I)/2014 (which amended the Equal Treatment of Men and Women as regards Access to 
Employment and Vocational Training Laws of 2002 to 2009)44;  Law No. 151(I)/2014 (which 
amended the Equal Pay between Men and Women for the Same Work or for Work to which 
Equal  Value  is  Attributed    Laws  of  2002  to  2009)45  and  Law  No.  149(I)/2014  (which 
amended the Equal Treatment of Men and Women in Occupational Social Insurance Schemes 
Laws of 2002 to 2009)46.47 These amendments relate to the reversal of the burden of proof in 
procedures  before  the  Ombudsman.  The  new  provisions  give  to  the  Ombudsman  the 
competence to request from the person against whom there is a complaint that any provision 
of the Law has been violated to prove that no such violation has taken place, in cases where 
the complainant has produced before the Ombudsman real facts showing that such violation is 
probable. 

In criminal cases, the person who is guilty of an offence under Laws Nos. 205(I)/2002, 
177(I)/2002  and  18(I)/2008  is  punished  with  a  fine  of  up  to  EUR  7000  or  six  months’ 
imprisonment or both. 

Furthermore  the  above  laws  provide  remedies  for  damages,  either  just  and  reasonable 
compensation  or  real  damages,  and  for  moral  damages  for  harm  to  the  claimant  plus  legal 
interest  and  reinstatement.  Access  to  the  courts  is  ensured  for  alleged  victims  of 
discrimination according to the Constitution and the above laws. The provision relating to the 
burden of proof has positive results in labour relations cases. 

The  Commissioner  for  Administration  (Ombudsman)  has  the  authority  to  examine 
complaints  of  discrimination  on  the  ground  of  sex.  Furthermore,  Law  No.  205(I)/2002 
established a Gender Equality Body in Employment and Vocational Training, which has the 
power to investigate complaints relating to violation of equal treatment provisions.    

Trade  Unions  and  Women’s  Organisations  have  the  right  to  represent  victims  of 

discrimination before the Ombudsman. 

The social partners play an important role in compliance with and enforcement of gender 
equality  laws.  Law  No.  205(I)/2002  as  amended  by  Law  No.  39(I)/2009  provides  that  any 
parts  of  an  existing  collective  agreement,  rule  of  an  independent  profession  or  rule  of  an 
employers’  or  workers’  organisation that  are contrary  to  the  provisions of the Law  must  be 
abolished if they contain direct or indirect discrimination against one sex. 

44   Laws No. 205(I)/2002, 191(I)/2004, 40(I)/2006, 176(I)/2007 and 39(I)/2009 
45   Laws No. 177(I)/2002, 193(I)/2004 and 38(I)/2009. 
46   Laws No. 133(I)/2002 and 40(I)/2009. 
47   Official Gazette of the Republic, 24 October 2014. 

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In  Cyprus  collective  agreements  are  gentlemen’s  agreements  and  are  not  binding  law 
currently. Collective agreements are used as a tool to promote gender equality, to comply with 
Community  Law  and  to  eliminate  any  direct  or  indirect  discrimination  against  one  sex  in 
existing provisions.  

8. Overall assessment 

After  the  publication  of  Laws  No.  149(I)/2014,  150(I)/2014  and  151(I)/2014  which  provide 
for the reversal of the burden of proof in procedures before the Ombudsman, in the author’s 
opinion the overall implementation of the EU gender equality acquis in Cyprus is satisfactory.  

CZECH REPUBLIC – Kristina Koldinská 

1. Implementation of central concepts 

The concept of equality as such is defined in the Czech Charter of Fundamental Rights and 
Basic Freedoms, which is part of the Constitution.  

The  main  concepts  of  discrimination  have  been  defined  in  the  Anti-Discrimination  Act 
(Act No. 198/2009 Coll.). Discrimination is also forbidden through other pieces of legislation, 
especially the Labour Code, the Employment Act, and also through some special Acts, such 
as  the  Act  on  Professional  Soldiers,  or  the  Public  Service  Act.  These  last-mentioned  Acts, 
however,  do  not  legally  define  any  central  concepts,  they  generally  prohibit  discrimination 
and  some  of  its  forms  (e.g.  harassment).  The  only  exception  is  the  Act  on  the  Service 
Relationship of Members of the Security Corps, which also includes a definition of direct and 
indirect discrimination, harassment and sexual harassment. On the other hand, provisions of 
the  above  mentioned  Acts  include  more  discriminatory  grounds  than  only  the  six  basic 
grounds, such as language, membership of political parties or trade unions, social origin, and 
property. 

The  Anti-Discrimination  Act  is  currently  the  only  piece  of  legislation  that  incorporates 
legal  definitions  of  direct  and  indirect  discrimination,  instruction  to  discriminate,  and 
harassment and sexual harassment. The Anti-Discrimination Act follows the definitions in EU 
law  and  does  not  go  further  than  EU  law  requires.  Positive  action  is  permitted  in  national 
legislation  on  certain  conditions.  Section  7(3)  of  the  Anti-Discrimination  Act  defines  what 
type  of  action  does  not  constitute  discrimination.  It  states  that  ‘[M]easures  targeted  at 
preventing  or  reducing  disadvantages  resulting  from  being  a  member  of  a  group  of  people 
who  may  be  discriminated  against  on  the  ground  of  their  race,  ethnic  origin,  nation,  sex, 
sexual orientation, age, handicap, religion, faith or world opinion shall not be considered as 
discrimination.’ 

2. Equal pay and equal treatment at work  

2.1. Equal pay 
The Anti-Discrimination Act defines pay using the term of remuneration, which ‘shall mean 
any performance, whether monetary or non-monetary, recurring or one-off, which is directly 
or indirectly provided to a person in paid employment’ (Section 5(1)). In the Czech Labour 
Code pay is defined as wage, salary or remuneration, which is a monetary consideration and 
an in-kind consideration provided to an employee for work done. Section 110 of the Labour 
Code regulates the equal pay obligation. All employees are entitled to receive equal pay for 
the same work or for work of equal value. The same work or work of equal value is taken to 
mean work of the same or comparable complexity, responsibility and strenuousness, which is 
performed in the same or comparable working conditions and which is of equal or comparable 
work  efficiency  and  produces  equal  or  comparable  work  results.  The  Labour  Code  covers 
almost all basic principles and elements of remuneration, including the principle of equal pay. 
However, the principle of equal pay for men and women is no longer explicitly mentioned.  

74 

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The Anti-Discrimination Act does not further specify the equal pay principle, so that for 

purposes of equal pay, the Labour Code is the more relevant Act in Czech legislation.  

2.2. Access to work and working conditions 
The  Anti-Discrimination  Act  regulates  equal  access  to  employment  and  includes  a  general 
obligation  for  employers  to  provide  for  equal  treatment  in  this  regard  (Section  5(3)).  The 
protection  against  discrimination  applies  to  all  natural  persons  who  fall  within  the  legal 
relations covered by the Act (the right to employment and access to employment, access to 
vocational  training,  entrepreneurship  and  other  self-employment  activities,  labour  relations 
and relations of civil servants and other dependent activities, and membership of and activity 
in trade unions, works councils and organisations of employers, professional chambers, etc.). 
The Czech legislator used the right to provide that a difference in treatment which is based on 
a  characteristic  related  to  sex  shall  not  constitute  discrimination  in  specific  conditions.  A 
general  exception  as  stipulated  in  EU  law  is  regulated  e.g.  in  the  Act  on  the  Service 
Relationship  of  Members  of  the  Security  Corps,  which  states  that  if  a  substantial  reason  is 
given,  the  difference  of  treatment  (in  general,  not  just  related  to  sex)  shall  not  constitute 
discrimination,  where  the  aim  of  such  exception  is  legitimate  and  the  requirement 
proportionate.  

The  Labour  Code  in  some  parts  regulates  the  prohibition  on  discrimination  in  labour 
relations. Employers are obliged to ensure equal treatment to all employees as regards their 
the  provision  of  other  monetary 
working  conditions,  remuneration  for  work  and 
considerations  and  considerations  of  a  monetary  value,  professional  training,  and  the 
opportunity of being promoted or other advancement in employment. 

2.3. Occupational pension schemes 
The Anti-Discrimination Act envisages guaranteeing equal treatment in occupational schemes 
(Section 8). All exceptions allowed in the Recast Directive have been included in the Anti-
Discrimination Act.  
  Whole parts of directives have been adopted literally and in their entirety, and copied in 
Sections 8-9 of the Anti-Discrimination Act. In this regard, implementation does not seem to 
be satisfactory as the directives have not been transposed in the real sense of the word, but 
have  just  been  copied.  The  obligation  to  implement  this  part  of  EU  law  has  formally  been 
completed but without any real legislative consideration as regards concrete issues. 
. However, the scheme includes almost no aspects of occupational pensions, even though it 
was declared a ‘second pillar’ system. It is a voluntary system, which could have been joined 
by opting out of the first pillar with a 3 % obligatory contribution and at least another 2 % 
from  individual  savings.  The  system  was  administered  by  private  subjects,  called  pension 
companies.  However,  as  of  12  November  2014  the  Government  has  decided  to  abolish  it, 
effective from 1 January 2016. By this date, everything shall be transferred to the third pillar 
‘individual savings. 

In the Czech Republic, there are some other elements of the occupational schemes to be 
mentioned: For example, there is the possibility for employers to contribute to the individual 
pension  schemes  of  their  employees  who  are  insured  under  a  scheme  of  supplementary 
pension  savings,  and  at  the  same  time  there  is  a  prohibition  on  discrimination  within  this 
scheme. 

3. Pregnancy and maternity protection, parental leave and adoption leave  

Czech  law  has  traditionally  paid  particular  attention  to  pregnant  women  and  guarantees 
mothers  and  fathers  special  protection  regarding  their  employment  relationship  until  their 
child reaches the age of three.  

According  to  relevant  provisions  of  the  Labour  Code,  pregnant  women  are  protected 
against having to carry out unsuitable work. If a pregnant woman’s job involves tasks which, 
according  to  medical  opinion,  might  endanger  her  pregnancy  then  her  employer  must 
temporarily  transfer  her  to  more  suitable  work  for  an  equal  wage.  Similar  rules  apply  to 

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mothers for nine months after the birth of their child and to breastfeeding women. Pregnant 
women who carry out night work may request to be transferred to day work and the employer 
must  not  refuse  such  request.  An  employer  must  also  grant  a  female  employee  who  is 
breastfeeding  her  child  special  breaks  for  breastfeeding.  Breaks  for  breastfeeding  are 
considered as working hours and a compensatory wage or salary equivalent to the amount of 
average earnings is paid for such breaks.  

If a pregnant woman, a parent looking after a child younger than 15 or a person looking 
after a bedridden person requests that his/her working hours be reduced, or that some other 
suitable adjustment be made to the prescribed weekly working time, the employer is obliged 
to  comply  with  his/her  request,  provided  that he is  not  prevented  from  doing  so  for  serious 
operational reasons.  

Parental leave shall be granted to the mother of the child at the end of her maternity leave 
(the general duration of maternity leave is 28 weeks; the period can be extended to up to 37 
weeks if the woman gives birth to two or more children at the same time) and to the father of 
the child from the day that the child is born, for the amount of time applied for, until the child 
reaches the age of three. The parents of the child are entitled to take maternity and parental 
leave concurrently. 

Pregnant women and parents looking after children under three years of age who are on 
parental leave are protected against dismissal. Czech law thus guarantees a return to the same 
job not only after maternity leave, but also after parental leave, which may last until the child 
reaches the age of three.  

Czech  law  also  provides  for  a  family  benefit  called  parental  allowance,  which  is 

guaranteed until the child reaches the age of four.  

The protection of pregnant women, of mothers for 22 weeks after the birth of their child, 
and of parents of young children is one of the most generous in Europe. Unfortunately, only a 
small number of fathers use this protection (only some 5 % of parents claiming parental leave 
and parental allowance are men), which in practice makes the position of women in the fertile 
age group worse at the labour market, as employers tend to employ men rather than women, 
who may go on leave for several years and still keep their rights.  

4. Statutory schemes of social security  

The statutory schemes of social security apply to the entire working population and provide 
protection against all risks mentioned by Directive 79/7. The conditions of the Czech social 
security  systems  are  not  normally  linked  to  gender  and  in  general,  the  Directive  is  well 
implemented. The following aspects should be pointed out: 

According to the legislation on sickness insurance, maternity benefits may also be paid to 
the child’s father, if the mother and father agree so in writing and if the mother cares for the 
child for at least six weeks after it is born.  

There  is  a  persistent  problem  with  the  pension  system,  as  it  allows  access  to  more 
generous  benefits  for  women.  The  first  benefit  is  connected  with  the  pensionable  age. 
Whereas there is one pensionable age for men, which is gradually being increased, there are 
differences in the pensionable age for women according to the number of children they have 
raised.  This  does  not  apply  to  men,  even  if  a  man  has  raised  his  children  alone.  The 
pensionable age will be equal for men and women in 2044, when people born in 1977 will 
reach 67 years of age. Until then, the current discrimination of men seems to be maintained by 
legislation.  This  practice  has  not  been  changed  following  the  ECtHR  ruling  in  Andrle,48  or 
even following the CJEU ruling in Soukupova.49 

As  regards  survivor’s  benefits,  there  are  equal  conditions  for  claiming  widow’s  and 
widower’s pensions. The only difference is in the age which must be reached in order to be 
able to claim a survivor’s pension for an unlimited period. 

48   Andrle v the Czech Republic [2011] nyr. (Application no. 6268/08). 
49   Case C-401/11 Blanka Soukupová v Ministerstvo zemědělství [2013] ECR nyr. 

76 

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5. Self-employed persons  

As  regards  conditions  for  establishing  and  continuing  self-employed  activities,  there  do  not 
seem to be any differences between men and women according to Czech law. There might be 
some specific problems, e.g. the fact that to become a legal professional, it is obligatory to be 
registered as a legal trainee for a certain period of time. If a trainee works at a law firm only 
part time, he or she cannot be registered as a legal trainee and therefore the time during which 
he  or  she  works  part  time  at  a  law  firm  is  not  counted  towards  the  period  of  legal  practice 
which must be completed to become a legal professional.  

Self-employed  persons  only  have  voluntary  access  to  sickness  insurance,  but  this  is  a 
gender-neutral  rule.  Still,  in  some  cases,  self-employed  women  who  unexpectedly  become 
pregnant can face a problematic situation, as they might have taken out insurance too late (the 
obligatory  waiting  period  is  280  days  of  insurance),  meaning  that  they  are  not  entitled  to 
maternity benefits (and could only claim parental allowance, which is quite low in this case), 
or they might have paid too little in contributions, meaning that their maternity benefits will 
be very low. 

Helping  spouses  are  covered  by  social  security  schemes  –  by  sickness  insurance  and 

pension insurance, if they have a taxable income from self-employed activities.  

6. Goods and services  

The  Anti-Discrimination  Act  ensures the right to equal treatment regarding  access to  goods 
and  services,  including  housing,  if  they  are  provided  to  the  public.  There  are  specific  laws 
regulating access to specific services, which also include an equal treatment rule regarding the 
access to these services (e.g. legislation on consumer protection, market inspection, access to 
information services, libraries etc.). 

In response to the Test-Achats case,50 the legislation in the area of private insurance has 
been amended accordingly, although after the deadline. The amending Act was published and 
entered into force on 24 April 2013, also changing other legislation on private insurance and 
prohibiting the use of sex as an insurance criterion for new contracts. The amendment is in 
complete  compliance  with  the  Guidelines  on  the  application  of  Council  Directive 
2004/113/EC on insurance, in light of the Test-Achats judgment. 

7. Enforcement and compliance aspects  

The Anti-Discrimination Act defines as legal instruments of protection against discrimination 
the right of a person who has been affected by discriminatory behaviour (this shall mean not 
only the victim) to demand through the courts a distancing from such behaviour, the removal 
of the consequences of this violation, and appropriate redress, including financial redress. 

The burden of proof has been transferred to the employer through Section 133a of the Act 

on Civil Procedure. 

The Czech Ombudsman (Public Defender of Rights) became the equality body when the 
Anti-Discrimination Act entered into force and his office is working very well in this regard. 
The office publishes a great number of reports and issues public opinions.51 The new Public 
Defender of Rights declared that she would like to enforce their competences in the field of 
equal rights, especially by proposing that her office become competent to represent a victim 
before the court. 

The  Anti-Discrimination  Act  makes  it  possible  for  legal  entities  which  have  been 
established in order to protect victims of discrimination to provide information and assistance 
in  the  drafting  of  claims  requesting  protection  against  discrimination.  Such  entities  are  also 

50   Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

51   See http://www.ochrance.cz/en/discrimination/, accessed 31 May 2013. 

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competent  to  propose  checks  on  or  the  monitoring  of  a  public  authority  overseeing  equal 
treatment  legislation. These  private  legal  entities  do not  have  a  direct  right  of access  to the 
courts, however.  

As regards social partners, they hardly play any real role in promoting gender equality in 
the  Czech  Republic.  Not  even  collective  agreements  are  used  very  often  as  a  means  to 
implement EU gender equality law. 

Case law in this field is also still very rare in the Czech Republic, especially due to the 
fact that victims of discrimination are discouraged from claiming their rights by the length of 
the procedure and possible complications, as well as by the general public opinion, which still 
maintains gender stereotypes and prejudices, so that it is more often the discriminator who is 
seen as the victim.  

8. Overall assessment  

The gender equality acquis has been implemented in the Czech Republic quite satisfactorily, 
although sometimes the implementation did not fully follow the spirit of the EU directives.  

The most important work still remains to be done in the area of acceptance of the anti-
discrimination rules by Czech society as a whole (from politicians and judges to the general 
public and the media). There is still quite a long way to go for the Czech Republic towards a 
society which fully enacts and applies the principle of equal treatment of men and women on 
a daily basis. 

DENMARK – Ruth Nielsen 

1. Implementation of central concepts 

The definitions of central concepts in the equality directives are repeated – in some cases with 
a  slightly  different  wording  – in  all  the  Danish  Acts  that  implement  aspects  of  the  equality 
directives. The most important Danish implementing Acts are the Equal Treatment Act which 
applies to access to employment and working conditions, including dismissal, the Equal Pay 
Act which applies to equal pay and the Gender Equality Act which applies to the promotion 
of gender equality and the prohibition of sex discrimination in all areas of society that are not 
covered  by  more  specific  legislation.  Most  labour  market  matters  are  covered  by  more 
specific legislation. The Gender Equality Act therefore only seldom  applies to employment 
relations. 

The  definition  of  direct  discrimination  in  the  EU  directives  is  repeated  in  the  Danish 
implementing legislation with the same wording as used in the directives. The definition of 
indirect discrimination is also repeated but not with exactly the same wording as used in the 
Recast Directive.  

Under  the  directives,  ‘indirect  discrimination’  may  be  justified  by  a  legitimate  (in  the 
Danish version of the directives: legitim) aim, and the means of achieving this aim are to be 
appropriate  and  necessary.  This  definition  is  repeated  with  slightly  different  wording  in  the 
different Danish laws on gender equality. 

Under the Equal Treatment Act, i.e. in the labour market, the responsible Minister may 
permit measures for the promotion of gender equality aiming at promoting equal opportunities 
for  women  and  men,  in  particular  by  removing  factual  inequalities  which  affect  access  to 
employment, training, etc.  

The provision on instruction to discriminate in the EU directives is repeated in the Danish 
implementing  legislation.  The  definitions  of  harassment  and  sexual  harassment  in  the  EU 
directives are repeated in the Danish implementing legislation with the same wording as used 
in the directives. 

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2. Equal pay and equal treatment at work 

2.1. Equal pay 
Equal  pay  between  men  and  women  is  governed  in  Denmark  by  the  Equal  Pay  Act  which 
dates back to 1976 when it was adopted to implement the Equal Pay Directive from 1975. It 
has been amended several times, most recently in 2008 in connection with the implementation 
of the Recast Directive (2006/54/EC). It means that for the same work or work of equal value 
men and women must be paid the same. Originally, the Danish Equal Pay Act only provided 
for  equal  pay  for  the  same  work  because  that  was  the  wording  preferred  in  collective 
agreements. After the Commission brought an infringement case against Denmark, the Court 
of  Justice  of  the  European  Union  (CJEU)  found  against  Denmark.  After  that  judgment  the 
wording of the Danish Equal Pay Act was changed. 

2.2. Access to work and working conditions  
In  Denmark,  EU  provisions  on  gender  equality  in  access  to  work  and  working  conditions, 
including dismissal, are implemented in the Equal Treatment Act by and large by repeating 
the text of the underlying directives. In 2005, the Equal Treatment Act was amended so that 
the scope of application of the principle of equal treatment was extended to membership of 
and  involvement  in  trade  unions  and  employers’  organisations.  Until  2005,  there  was  a 
problem on this point in Denmark, which had a Women Workers’ Union. This problem has 
disappeared. After more than one hundred years the Women Workers’ Union ceased to exist 
as  an  independent  trade  union.  On  1  January  2005  it  merged  with  the  predominantly  male 
General Workers’ Union to become 3F, Denmark’s biggest trade union. 

Denmark  has  a  strong  historical  tradition  of  not  accepting  protective  measures  for 
women. The protection of women for reasons other than pregnancy or motherhood does not 
exist in Danish law. 

2.3. Occupational pension schemes 
The  principle  of  equal  treatment  for  men  and  women  in  occupational  pension  schemes  is 
governed in Denmark by the Act on Equal Treatment between Men and Women in Insurance, 
Pension and Similar Matters. In Denmark most occupational pension schemes are defined as 
contribution  schemes.  One  or  two  generations  ago  most  pension  schemes  used  actuarial 
calculations which were gender-related in such a way as to result in women receiving smaller 
monthly benefits than men for whom the same contributions had been paid. During the last 25 
years  or  so  the  trend  has  been  shifting.  A  number  of  pension  schemes  were  established  in 
connection  with  the  renewal  of  collective  agreements  in  1989  and  1993.  Most  of  these 
schemes use actuarial calculations that result in women receiving the same monthly benefits 
as men for whom identical contributions have been paid. This is known as the unisex basis of 
actuarial  calculations.  A  few  older  schemes,  for  example  the  one  applying  to  lawyers,  have 
also adopted the unisex calculation. 

In 1998, a new Act providing for unisex occupational pension schemes was adopted. The 
main provision of the Act prohibits provisions in occupational pension schemes according to 
which men and women are treated differently on grounds of sex as regards the determination 
and calculation of contributions and benefits. Of special importance is that the Act prohibits 
both different contributions and different benefits, also in cases where the reason for different 
treatment is actuarial factors. However, the prohibition of sexual differentiation on grounds of 
actuarial factors only applies to workers who joined the scheme after 1 July 1999. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Before  the  adoption  of  the  Equal  Treatment  Act  in  1978  which  implemented  the  Equal 
Treatment  Directive  from  1976  it  was  lawful  under  Danish  law  and  usual  for  employers  to 
dismiss or otherwise treat women unfavourably on grounds of pregnancy. A major change in 
Danish  law  brought  about  by  the  adoption  of  the  Equal  Treatment  Act  was  the  improved 

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79 

 
 
 
 
 
 
 
protection  of  pregnant  women.  The  Pregnancy  Directive  was  implemented  in  1994  by  an 
amendment to the Equal Treatment Act.  

Since  2006,  the  rules  on  maternity,  paternity  and  parental  leave  and  benefit  have  been 
placed  in  a  special  Maternity,  Paternity  and  Parental  Leave  and  Benefit  Act  (Barselloven) 
covering these (and only these) issues. Parents are – between them – entitled to 52 weeks of 
maternity, paternity and parental leave on full benefit, i.e. 100 % of the normal benefit paid 
from  public  funds  to  persons  who  are  absent  from  work  due  to  unemployment,  sickness  or 
pregnancy. The 52 weeks of parental leave are composed of maternity leave to commence 4 
weeks  before  the  expected  date  of  confinement  until  14  weeks  after  the  birth  of  the  child, 
followed by parental leave. Maternity leave can only be taken by the mother. In the maternity 
leave period the father is entitled to 2 weeks paternity leave. From 14 weeks after the birth of 
the child  the  parents  are  entitled to  32  weeks  of  parental  leave  with benefit  which  they  can 
share as they please. There are some possibilities of prolonging the parental leave period by 
accepting  a  reduced  benefit  and  also  some  possibilities  of  postponing  the leave  period  until 
later.  

The Maternity, Paternity and Parental Leave and Benefit Act only provides for a benefit 
which  for  most  workers  is  considerably  lower  than  full  pay.  In  practice  most  Danish 
workers/employees are covered by collective agreements providing for full or partial pay for 
the whole or part of the period of maternity, paternity or parental leave. As a result pregnancy, 
etc.  may  be  costly  for  an  employer.  During  recent  years  efforts  have  been  made  to  make 
pregnancy,  etc.  cost-neutral  for  employers  by  imposing  obligations  on  all  employers  to 
contribute to covering the costs of pregnancy, maternity, paternity and parental leave. In the 
spring  of  2004,  the  Confederation  of  Danish  Trade  Unions  (LO)  and  the  Confederation  of 
Danish Employers’ Organisations (DA) concluded a collective agreement on reimbursement 
within  a  maximum  of  pregnancy,  etc.  payments  by  employers  who  are  members  of  a  DA 
organisation.  This  solution  has  since  been  generalised  for  the  whole  private  sector  of  the 
labour market by legislation. The Act on reimbursement of pregnancy, etc. payments in the 
private  sector  (Barselsudligningsloven)  requires  all  employers  in  the  private  sector  who  are 
not under a similar duty by collective agreement to pay contributions to a pregnancy fund. 

4. Statutory schemes of social security  

In  connection  with  the  implementation  of  Directive  79/7/EEC,  Denmark  revised  its  social 
security legislation to make it sex-neutral with effect from 1984. Before this, the qualifying 
age  for  the  general  statutory  old-age  pension  (folkepension)  was  67  for  men  and  married 
women  and  62  for  unmarried  women.  This  age  was  made  sex-neutral  and  fixed  at  67  for 
everyone. It was later lowered to 65 and again raised to 67.  

5. Self-employed workers  

The Directive on self-employed persons and helping spouses was implemented in Denmark in 
the Equal Treatment Act which extends the prohibition against sex discrimination to anyone 
who makes decisions on access to or conditions of work as a self-employed person or helping 
spouse.  

6. Goods and services  

Denmark has had a Gender Equality Act since 2000. In 2007, Denmark partially implemented 
the  Supply  of  Goods  and  Services  Directive,  except  for  Article  5  on  gender  equality  and 
actuarial factors in insurance contracts. 

In  2009,  Denmark  amended  the  Act  on  Equal  Treatment  of  Men  and  Women  in 
Insurance, Pension and Similar Financial Matters in order to implement Article 5 of Directive 
2004/113/EC. The amendment added a new chapter to the Act on insurance contracts that are 
not  entered  into  in  connection  with  employment  or  occupation.  The  main  new  rule  was 
Section  18  b(1)  which  provided  that  using  sex  as  a  factor  in  calculating  premiums  and 

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benefits related to insurance and related financial services in all new contracts concluded after 
21 December 2009 must not lead to differences in individuals' premiums and benefits, subject 
to Paragraphs 2 and 3. A provider of insurance and related financial services, was, however, 
under Section 18 b(2) – in accordance with Article 5(2) in the underlying Directive – allowed 
to  apply  proportionate  differences  in  individuals'  premiums  and  benefits  where  the  use  of 
gender was a determining actuarial factor for risk assessment. On 1 March 2011, the CJEU 
declared  Article  5(2)  of  the  Directive  as  invalid.52  Danish  legislation  was  adapted  to  this 
ruling of the CJEU as of 21 December 2012. 

7. Enforcement and compliance aspects 

The  provision  on  victimisation  in  the  underlying  directives  is  repeated  in  the  Danish 
implementing  legislation.  The  provisions  on  the  shared  burden  of  proof  in  the  underlying 
directives  are  repeated  in  the  Danish  gender  equality  legislation.  In  addition  the  Equal 
Treatment Act provides for a reversal of the burden of proof in the case of dismissal during 
pregnancy, maternity, paternity or parental leave. 

Under  the  Equal  Treatment  Act  the  typical  sanction  for  a  breach  of  the  duty  not  to 
discriminate  on  grounds  of  sex  is  compensation  which  may  cover  both  economic  and  non-
economic  loss.  In  equal  pay  cases  the  typical  remedy  is  the  payment  of  the  difference  in 
payment  between  the  woman  and  the  male  comparator.  Interest  to  compensate  for  the  loss 
sustained can be awarded. The substantive right to equal pay or compensation for a breach of 
the ban on sex discrimination will usually be time-barred after 5 years. In principle violations 
of the Equal Treatment Act can also be sanctioned by a fine. In practice this only happens in 
case of sex-discriminatory job advertisements. There is no criminal sanction in the Equal Pay 
Act. 

There are no special rules for equality cases on access to the courts. Alleged victims of 
discrimination  will  clearly  have  access.  For  interest  groups  their  legal  standing  depends  on 
how concrete an interest they have in the case. The requirement of establishing one or more 
equality bodies in the Recast Directive (2006/54/EC) and the similar requirements for gender 
equality  bodies  in  the  Equal  Treatment  Directive  and  the  Supply  of  Goods  and  Services 
Directive were transposed into Danish law in 2011.  

Generally, the social partners play a predominant role on the Danish labour market. If a 
claim is based on a collective agreement the social partners are the only ones who can enforce 
it. In addition, most employment law cases brought before the ordinary courts are brought by 
a trade union on behalf of a member.  

In  Denmark  collective  agreements  cannot  be  extended  to  cover  employers  who  are  not 
parties  to  them.  This  means  that  there  are  no  generally  applicable  collective  agreements  in 
Denmark.  Collective  agreements  –  as  other  contracts  bind  the  parties  to  them  and  no  one 
else – are, however, a very important source of law in Denmark. Gender equality legislation is 
subsidiary  to  collective  agreements  providing  for  similar  protection  as  prescribed  by 
legislation.  

8. Overall assessment  

By and large the Danish implementation of the EU gender equality acquis is satisfactory. 

52   Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

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1. Implementation of central concepts 

ESTONIA – Anu Laas 

Direct discrimination based on sex was defined in the Gender Equality Act (GEA) for the first 
time  in  2004  and  several  amendments  entered  into  force  in  2009.  Article  3(3)  of  the  GEA 
provides that ‘direct discrimination based on sex’: 

occurs where one person is treated less favourably on grounds of sex than another is, has been or 
would  be  treated  in  a  comparable  situation.  Direct  discrimination  based  on  sex  also  means  less 
favourable  treatment  of  a  person  in  connection  with  pregnancy  and  child-birth,  parenting, 
performance  of  family  obligations  or  other  circumstances  related  to  gender,  as  well  as  gender-
based harassment and sexual harassment and less favourable treatment of a person due to rejection 
of or submission to harassment. 

It  was  in  2009  that  the  last  amendment  about  less  favourable  treatment  of  a  person  due  to 
rejection of or submission to harassment was made. 

Indirect gender discrimination is defined in Article 3(4) of the GEA, which entered into 
force  in  2004.  The  definition  has  not  been  changed  and  is  the  same  as  provided  in  Article 
2(1)(b) of the Recast Directive. The GEA includes a prohibition on discrimination based on 
sex  in  the  private  and  public  sectors,  which  means  that  the  requirements  of  the  Act  do  not 
apply to relations in family or private life.  

The  Equal  Treatment  Act  (ETA)  entered  into  force  on  1  January  2009  and  bans 
discrimination on grounds of nationality (ethnic origin), race, colour, religion or other beliefs, 
age, disability or sexual orientation.  

Chapter 3 of the GEA requires promotion of gender equality in education and training. 
The  State’s  and  local  government  authorities’  duty  is  to  change  the  conditions  and 
circumstances that hinder the achievement of gender equality. The State and local government 
authorities shall, if necessary, consult the relevant interest groups and non-profit organisations 
(NGOs) that have a legitimate interest in helping to combat gender discrimination and support 
equal treatment. The clause ‘if necessary’ allows room for debate about the involvement of 
NGOs.  

Gender  equality  issues  are  mentioned  in  the  current  Estonian  Government’s  Coalition 
Agreement  from  March  2014.  In  order  to  improve  gender  equality,  measures  are  being 
implemented  in  the  framework  of  a  pre-defined  project  of  the  Gender  Equality  and  Equal 
Treatment  Commissioner  as  part  of  a  programme  for  promoting  gender  equality  and 
reconciliation  of  work  and  family  life,  co-financed  by  the  Norwegian  Financial  Mechanism 
2009-2014.  The  project  is  being  carried  out  in  2013-2015  and  is  targeted  at  increasing  the 
effectiveness  of  legal  protection  against  discrimination  by  raising  rights  awareness  and 
helping victims of discrimination directly through strategic litigation, as well as increasing the 
capacity  of  officials  in  assisting  discrimination  victims.  The  project  also  supports  the 
implementation of gender mainstreaming obligations stipulated by the GEA.  

Article  5(2)(5)  of  the  GEA  allows  application  of  temporary  specific  measures  and 
offering  advantages  to  the  less-represented  sex  to  promote  gender  equality  and  to  reduce 
gender inequality. However, the meaning of ‘temporariness’ has not been specified in law or 
case law. 

Discrimination is prohibited in Article 12 of the Constitution of the Republic of Estonia. 
Chapter  2  of  the  GEA  outlines  the  general  principle  of  non-discrimination  and  lists 
exceptions,  when  unequal  treatment  is  not  deemed  to  be  direct  or  indirect  discrimination 
based on sex. 

Discrimination may occur in recruitment processes and selection results may be disputed. 
It  is  allowed  to  collect  accessible  data  in  recruitment  processes,  and  the  data  about  job 
applicants may be stored until the deadline for disputing the recruitment decision has expired 
(one  year).  The  Estonian  Data  Protection  Inspectorate  (AKI)  has  worked  out  guidelines  for 

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HR  managers  regarding  the  rules  on  the  processing  of  personal  data  of  employees  and  job 
applicants.53 

The  concepts  of  harassment  on  the  ground  of  sex  and  sexual  harassment  have  been 
regulated in the GEA since 2004. Before transposition of the Directive 2006/54/EC, the GEA 
defined ‘sexual harassment’ in connection with the existence of subordination or a dependent 
relationship.  The  concept  of  ‘sexual  harassment’  was  brought  in  line  with  the  Directive  in 
2009,  and  no  changes  have  been  made  to  the  legal  definitions  in  the  recent  years.54  Sexual 
harassment  occurs  where  any  form  of  unwanted  verbal,  non-verbal  or  physical  conduct  or 
activity  of  a  sexual  nature  occurs,  with  the  purpose  or  effect  of  violating  the  dignity  of  a 
person, in particular when creating a disturbing, intimidating, hostile, degrading, humiliating 
or  offensive  environment.55  Gender-based  harassment  occurs  where  unwanted  conduct  or 
activity related to the sex of a person occurs with the purpose or effect of violating the dignity 
of  a  person  and  of  creating  a  disturbing,  intimidating,  hostile,  degrading,  humiliating  or 
offensive  environment.56  In  2011,  and  analysis  of  Estonian  legislation  pointed  out  that 
concepts of sexual harassment and harassment related to sex are defined in line with the EU 
directives, but ‘these concepts are not explained in national legislation any further’.57 

Sexual harassment and gender-based harassment are forms of direct discrimination based 
on  sex.  An  employer  shall  ensure  the  protection  of  employees  against  discrimination.  The 
Gender Equality and Equal Treatment Commissioner accepts applications from persons, and 
provides opinions on possible cases of discrimination. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
A definition of work of equal value is lacking in the GEA and there is no relevant national 
case law either. ‘The same work or work to which equal value is attributed’ is mentioned in 
Article 6(2)(3) of the GEA. The law stresses the employer’s obligation not to discriminate and 
to pay remuneration for work at the time and in the amount agreed. The former Wages Act is 
no longer valid and provisions on wages are now contained in the ECA. 

There is  a judgment  on  the  collection  and  disclosure  of  information  concerning  wages. 
This case is important because of the notion that information about wages could be a point of 
departure for diminishing the gender wage gap. The Supreme Court considered in 2009 that 
disclosure  on  pay  and  salaries  in  public  sector  should  be  available  and  accessible.  The 
Estonian law requires the disclosure of salary rates and pay schemes applicable in state and 
local  government  agencies,  not  the  salaries  of  individual  persons.  The  judgment  also  states 
that pay transparency is related not only to officials, but also to other employees who have an 
employment  contract.58  Anonymous  pay  data  specified  per  position  do  not  contribute  to 
decreasing the gender pay gap. 

Some  efforts  have  been  made  to  make  wage  policies  more  transparent  in  the  public 
sector. Parliament passed the new Public Service Act (PSA) in June 2012. The PSA aims to 

53   http://www.aki.ee/sites/www.aki.ee/files/elfinder/article_files/Personal%20Data%20in%20employment%

20eng.pdf, accessed 29 May 2013. 

54   A distinction between ‘sexual harassment’ (seksuaalne ahistamine, Article 1(d) of the Directive 2006/54/EC 
and Article 3(1)(5) of the GEA), and ‘gender-based-harassment’ (sooline ahistamine, Article 1(c) of the 
Directive 2006/54/EC and Article 3(1)(6) of the GEA) has been attempted, due to translation and 
sociolinguistic problems in Estonian.  

55   Article 3(1)(5) of the GEA (in effect 23 October 2009). 
56   Article 3(1)(6) of the GEA (in effect 23 October 2009). 
57   A. Albi ‘Estonia’ in: European Network of Legal Experts in the Field of Gender Equality, A. Numhauser-
Henning and S. Laulom (eds.) Harassment related to Sex and Sexual Harassment Law in 33 European 
Countries, European Commission, 2011, pp 87-93, available at http://ec.europa.eu/justice/gender-equality/
files/your_rights/final_harassement_en.pdf, accessed 8 October 2013. 

58   Judgment No. 3-4-1-1-09 of the Constitutional Review Chamber of the Supreme Court of 19 May 2009. RT 

III, 2009, 27, 199. Available http://www.nc.ee/?id=1036, accessed 15 January 2014. 

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make  public-sector  pay  arrangements  more  transparent  by  increasing  the  share  of  basic 
salaries and by cutting bonuses. 

The  National  Reform  Programme  (NRP)  ‘Estonia  2020’  was  approved  by  the 
Government  on  8  May  2014.  According  to  the  NRP  the  Ministry  of  Social  Affairs  has  to 
develop and implement an action plan to reduce the gender pay gap in 2013-2016. An action 
plan to reduce the gender pay gap in Estonia was adopted in 2012 and activities in 2013-2015 
are  mostly  implemented  with  financial  support  from  the  Estonian  European  Social  Fund 
programme  ‘Promoting  Gender  Equality  2011-2013’  and  the  gender  equality  and  work-life 
balance programme financed from the Norwegian Financial Mechanism 2009-2014. 

Case law concerning pay discrimination is scarce.    

2.2. Access to work and working conditions 
Discrimination  in  professional  life  is  prohibited  and  situations  where  discrimination  may 
occur are listed in Article 6 of the GEA. Employers and legal persons in private law or sole 
proprietors  entered  in  the  register  of  economic  activities  as  labour-market  service  providers 
shall not request information about job applicants’ pregnancy, childbirth, parenting, parental 
obligations or other circumstances related to gender. However, employers make background 
surveys and case law is lacking. 

There is an opinion by the Gender Equality and Equal Treatment Commissioner, where 
‘discrimination on the basis of parenting and family obligations’ was found.59 However, equal 
pay for the same work was not applied, which had been the main cause of the claim. This case 
concerned a situation where the pay at the 2007 level was offered to a woman who returned to 
work  after  childcare  leave  in  2009.  In  the  period  of  2007-2009,  wages  had  risen  but  the 
claimant was offered her former salary level. She did not agree and asked for the salary that 
was appropriate for this job position. According to Article 18(1) of the Employment Contracts 
Act,  when  a  woman  returns  from  pregnancy  and  maternity  leave  she  is  entitled  to  the 
improved working conditions which she would have been entitled to during her absence. The 
Commissioner  analysed  the  case,  asked  for  explanations  and  evidence,  and  found 
discrimination and unequal treatment on grounds of gender and in connection with parenting 
and family obligations. 

2.3. Occupational pension schemes 
The  State  Pension  Insurance  Act,  the  Superannuated  Pensions  Act,  the  Old-Age  Pensions 
under Favourable Conditions Act, and the Funded Pensions Act regulate pensions in Estonia. 
A three-pillar pension system is in place: The first pillar is mandatory state pension insurance, 
and the second pillar is a mandatory funded pension. The estimates are that the state pension 
and the funded pension will together account for about half of a person’s pre-pension income.  
Occupational  pension  schemes  are  connected  with  the  third  pillar.  Unfortunately,  the 
knowledge and understanding of this option is low. The Estonian government is aware of the 
need to improve financial literacy, and is expected to take necessary actions. At the time of 
writing (2013), only financial institutions try to attract investment in the third pillar. 

The occupational pension scheme is a voluntary supplementary scheme that is supported 
by  the  Government  through  tax  deductions;  a  21  %  income  tax  rebate  on  such  pension 
contributions  is  given.  There  are  many  options  for  saving  in  this  pension  scheme,  but 
problems remain with persons on low incomes and limited saving capability. An employer’s 
pension  is  a  solution,  which  allows  companies  to  contribute  to  the  future  of  their  staff 
members via the third pension pillar. The incentive can be used for contributions that are up 
to 15 % of person’s cross salary, but do not amount to more than EUR 6 000 per year. 

According to the State Pension Insurance Act, the old-age pension is paid to the persons 
who have reached the general pensionable age. At the moment, this threshold is different for 
men and women (63 and 61 years respectively, but a gradual decrease in this difference by 6 

59   Gender Equality and Equal Treatment Commissioner. Opinion No. 19 (in Estonian), 13 February 2012, 

www.svv.ee, accessed 24 March 2012. 

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months  every  year  is  expected.  The  pensionable  age  for  women  will  meet  that  of  men  by 
2016. On 7 April 2010, the Estonian Parliament’s amendment of the State Pension Insurance 
Act was adopted, providing the general pension able age of 65 years for women and men. The 
transition  period  (starting  in  2017)  is  provided  for  those  born  between  1954  and  1960.  For 
these, the retirement age will be gradually increased by 3 months for every year of birth, and 
will reach the age 65 in 2026. The amendment shall take effect on 1 January 2017. 

People working after reaching the pensionable age (i.e. working pensioners) are entitled 
to a full pension, regardless of their work income. Due to the different pensionable ages for 
women and men, the Old-Age Pensions Under Favourable Conditions Act refers to the right 
of women to receive an old-age pension under favourable conditions until 2015.  

Amendments to the State Pension Insurance Act entered into force on 1 August 2012 to 
ensure  the  equal  treatment  of  self-employed  men,  women  and  other  employees.  In  2012, 
amendments were made in the Funded Pensions Act to provide for additional contributions to 
mandatory  pension  funds  upon  receipt  of  parental  benefit  (entered  into  force  on  1  January 
2013).  Only  one  parent  (including  guardians  and  caregivers)  is  entitled  to  the  additional 
contribution. A person shall submit an application and any necessary additional documents to 
the Social Insurance Board, in order to make and terminate additional contributions.  

Due  to  Estonia  holding  the  highest  gender  pay  gap  in  Europe,  there  is  a  high  risk  that 

women will receive a lower pension in comparison to men in the future.60 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Pregnancy  and  maternity  protection  is  mainly  covered  in  the  ECA,  GEA  and  ETA.  Less 
favourable treatment of a person in connection with pregnancy and childbirth, parenting, and 
performance of family obligations constitutes direct discrimination. 
  Women  have  the  right  to  a  pregnancy  and  maternity  leave  of  140  calendar  days.  Only 
insured women who were working prior to going on pregnancy and maternity leave have the 
right to the related benefits, others are paid a fixed minimum. Mothers with a child younger 
than 18 months have the right to breastfeeding breaks. These breaks are compensated to the 
employer from the state budget. 

Fathers have the right to a total of ten working days of paid paternity leave in the period 
from two months prior to the due date as determined by a doctor or midwife until two months 
after the birth of the child. The applicant for the leave must inform the employer to this effect 
and  write  an  application  for  paternity  leave.  Parental  leave  is  job-protected  for  three  years: 
employment  contracts  are  suspended  for  the  term  of  the  parental  leave,  meaning  that  the 
position  is  retained.  About  435  days  of  the  parental  leave  after  maternity  leave  is  fully 
compensated  and  both  mothers  and  fathers  are  entitled  to  parental  benefits.61  Estonia’s 
parental leave system is one of the most generous. 

The  ECA  regulates  the  number  of  days  for  pregnancy  and  maternity  leave,  and 
adjustments to working conditions are required. An employer cannot cancel an employment 
contract when an employee is pregnant or has the right to pregnancy and maternity leave, nor 
can  an  employer  cancel  an  employment  contract  when  an  employee  performs  important 
family  duties. To ensure a  safe  working  environment  for pregnant  or  breastfeeding  women, 
the  employer  must  ensure  lighter  working  conditions,  shortened  workdays,  suitable  breaks, 
transfer to daytime work and, if necessary, a change in job duties. 

60   With Eurostat’s methodology, the gender pay gap in Estonia is one of the widest in the European Union (30 % 
in 2012). According to Statistics Estonia, the gender pay gap in Estonia in 2012 was 24.6 %, taking into 
account all enterprises and institutions and all economic activities. The gender pay gap published by Eurostat 
does not take into account the indicators of enterprises and institutions with fewer than 10 employees; it also 
excludes the earnings of employees in agriculture, forestry and fishing and in public administration and 
defence. 

61   Maternity leave benefits and parental benefits depend on former income, and people with no former income 

are entitled to the fixed minimum payment. The duration of maternity leave and parental leave together is 575 
days, which is covered by full payment depending on the monthly income from the previous calendar year. 

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85 

 
 
 
 
 
 
 
                                                      
The  GEA  applies  to  women  and  men  (including  fathers  and  adoptive  parents)  with 
parental  and  family  obligations.  According  to  the  ECA  and  the  GEA,  it  is  prohibited  to 
discriminate on the basis of parenting and family obligations. Adoptive parents have the same 
rights as biological parents. 

In Estonia, maternity leave and childcare leave are longer than the compulsory minimum 
leave  as  foreseen  in  Directive  92/85/EEC.  An  issue  is,  however,  whether  ‘adequate’ 
allowances as paid by the State are guaranteed in Estonia. The flexicurity ideas provided in 
the ECA have their price. Employees’ security has diminished; the ECA allows dismissals for 
several  reasons  and  compensation  has  decreased.  The  problem  regarding  compensation  for 
dismissed persons was planned to be solved by amendments of the Unemployment Insurance 
Act (UIA), and the Unemployment Insurance Fund was to decide during the specified period 
whether to grant a benefit upon insolvency of the employer. The outcome of negotiations is 
not  satisfactory  and  neither  Government  nor  social  partners  currently  see  any  room  for 
improvement.  

Dismissal of fixed-term employees is more problematic for employers than dismissal of 

employees on an open-ended employment contract.  

4. Statutory schemes of social security 

In Estonia an equalisation process concerning the pensionable age is in progress, which will 
finish in 2026 with the same retirement age for women and men at 65. The current calculation 
of old-age pension is discriminatory due to the huge gender pay gap. Old-age pension consists 
of  three  components:  the  base  amount,  a  component  calculated  on  the  basis  of  years  of 
pensionable service, and an insurance component.62 On average, women have earned less than 
men, and their insurance component will be lower, because women have ‘earned’ fewer years 
in a system of indexed pension years and a sum of the annual factors will be lower compared 
to the average man. As women’s life expectancy is lower, this means that a low-paid person 
will be punished twice – now and when they retire. At the same time, the relative importance 
of the insurance component increases every year, which means that the state old-age pension 
depends  more  and  more  on  the  amount  of  social  tax  paid  for  each  specific  person  or  the 
amount of his or her salary during his or her entire life of employment. 

The  Act  on  Amendments  to  the  Funded  Pensions  Act  and  the  State  Pension  Insurance 
Act and Other Associated Acts was passed in June 2012 and entered into force on 1 January 
2013.  The  Act  provides  for  the  creation  of  a  supplementary  funded  pension  contribution 
related  to  raising  a  child  and  the  payment  of  a  pension  supplement  on  the  basis  of  the 
provisions of the State Pension Insurance Act, with the aim of compensating for the potential 
reduction of pension of the parent in the future as a result of raising a child. The Government 
decided to start these payments not before 1 January 2015. 

5. Self-employed persons 

Article 2(b) of Directive 2010/41 states that it covers the spouses of self-employed persons or, 
when and insofar as recognised by national law, the life partners of self- employed persons, 
not being employees or business partners. Regarding life partners, the more precise question 
is  whether  life  partners  should  also  be  recognised  by  national  law.  In  Estonia  it  has  been 
decided  that  only  spouses  who  are  in  a  registered  marriage  could  be  covered  as  assisting 
spouses.  National  law  also  includes  the  restriction,  as  referred  to  in  Directive  2010/41,  that 
assisting spouses are not employees or business partners of the self-employed person. 

62   One component is calculated on the basis of years of pensionable service, the amount of which equals the 

number of years of pensionable service multiplied by the value of a year of pensionable service; the insurance 
component represents an amount which equals the sum of the annual factors of an insured person multiplied by 
the value of a year of pensionable service. 

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It  was  also  decided  that  the  status  of  entrepreneur  will  be  recognised  based  on  oral 
statements (not being by an employee or business partner) and that registration at the Tax and 
Customs  Board  is  required.  An  assisting  spouse  will  be  covered  by  health  insurance,  if  the 
spouse  pays  at  least  a  minimum  of  social  tax  (EUR  95.70  a  month).  Maternity  leave  is 
applicable  to  self-employed  persons  or  assisting  spouses,  but  maternity  benefits,  which 
depend on paid social tax, will be at the minimum level. Unfortunately, there are no services 
supplying temporary replacements for leave periods, and interruptions in occupational activity 
of self-employed persons and assisting spouses are problematic.  

The transposition of Directive 2010/41 resulted in amendments to the Health Insurance 
Act (HIA), where Article 10.1 was added and related Articles amended.63 Articles 10 and 10.1 
regulate the duration of the insurance cover of sole proprietors and their assisting spouses as 
entered in the register. The spouse of the sole proprietor is entitled to health insurance after 14 
days from entering the health insurance database, and at least a minimum monthly social tax 
is paid by the sole proprietor.  

To ensure social protection for persons with a creative occupation who have an irregular 
income,  amendments  of  the  Creative  Persons  and  Artistic  Associations  Act  (CPAAA)  and 
related Acts entered into force on 20 January 2014.64 The amount of the state support to the 
artistic  association  per  member  per  year  shall  be  21.5  %  of  the  average  wages  per  month 
(according  to  Statistics  Estonia,  the  data  of  the  previous  year).  The  amount  of  monthly 
support to a creative person engaged in a liberal profession shall be the minimum wage per 
month established by the Government of the Republic. This is a basis for social protection of 
self-employed creative persons engaged in a liberal profession. 

6. Goods and services 

The Government of the Republic initiated the Bill on Amendments to the Insurance Activities 
Act and Other Associated Acts (349 SE), which was presented to Parliament in January 2013. 
The  explanatory  memorandum  of  the  Bill  explores  the  content  of  Council  Directive 
2004/113/EC and refers to the decision of the Court of Justice in Test-Achats. From 2007 to 
2012, Estonian insurance companies used the right to include sex as a factor in three types of 
insurance: life insurance, personal accident insurance and health insurance. 

Article  5(2)  of  the  GEA  lists  cases  which  may  be  considered  as  non-discriminatory. 
Article 5(2)(4.1) entered into force on 6 May 2013. This Article provides that differences are 
allowed  in  the  treatment  of  persons  due  to  their  sex  upon  supplying  goods  and  services 
pursuant  to  subsection  14.1(2)  or  subsection  262(15)  of  the  Insurance  Activities  Act  or  in 
cases where the provision of goods and services exclusively or primarily to members of one 
sex is justified by a legitimate aim and where the means of achieving that aim are proportional 
to the aim. 

The  Insurance  Activities  Act  was  amended  by  introducing  an  Article  about  the  gender 
factor  in  risk  assessment  (Article  14.1).  Article  14.1(3)  states  that  neither  pregnancy  nor 
maternity shall affect the amount of the insurance premiums and insurance indemnities. 

7. Enforcement and compliance aspects 

Protection  of  individual  rights  or  supporting  another  person  is  encouraged  by  widening  the 
scope  of  protection  against  victimisation.  Less  favourable  treatment  of  a  person,  as  well  as 
causing negative consequences for a person based on the fact that this person has relied on the 
rights and obligations as provided in the GEA, shall be deemed to constitute discrimination. If 

63   Articles 5(3.1) and 50(1.1). 
64   Creative Persons and Artistic Associations Act (CPAAA), RT I 2004, 84, 568; RT I, 10.01.2014, 2. A creative 

person is an author or a performer within the meaning of the Copyright Act who acts in the field of 
architecture, audiovisual arts, design, performing arts, sound arts, literature, visual arts or scenography. A self-
employed creative person engaged in a liberal profession may use the attribute ‘creative person engaged in a 
liberal profession’ in the business name upon entering into the relevant commercial register.  

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less  favourable  treatment  or  negative  consequences  occur  for  a  person  who  has  supported 
another  person  in  the  protection  of  his  or  her  rights  as  provided  in  the  GEA  shall  also  be 
deemed to constitute discrimination. 

Article 4 of the GEA is about shared burden of proof. Article 4(1) of the GEA explains 
that an application of a person addressing a court, a labour dispute committee or the Gender 
Equality and Equal Treatment Commissioner shall set out the facts on the basis of which it 
can be presumed that discrimination based on sex has occurred. In the course of proceedings, 
it shall be for the respondent to prove that there has been no breach of the principle of equal 
treatment. If this person refuses to provide proof, such refusal shall be deemed to be equal to 
acknowledgement of discrimination by this person (GEA 4(2)). There have been some court 
cases, where parties have provided facts proving that there had been no breach of the principle 
of equal treatment, but none of these cases were related to the gender pay gap. 

Opinions  of  the  Gender  Equality  and  Equal  Treatment  Commissioner  are  not  legally 
binding.  However,  in  some  cases  media  attention  and  public  interest  makes  the  opinion 
stronger and more effective. For example, the Agricultural Registers and Information Board, a 
state  agency,  has  reduced  pay  for  employees  returning  from  parental  leave  by  10  %.  The 
Commissioner’s  opinion  was  so  influential  that  40  employees  received  their  full  wages.  In 
order  to  improve  the  efficiency  of  legal  remedies  in  gender  discrimination  cases,  and  to 
provide  exemplary  court  decisions  that  will  influence  society  concerning  discriminatory 
practices  and  attitudes,  the  Commissioner  will  engage 
in  strategic  litigation.  The 
Commissioner’s office will be responsible for choosing the cases that will be brought before 
the  court,  arranging  legal  assistance  in  proceedings  (e.g.  contracting  litigation  lawyers), 
providing  expertise  on  anti-discrimination  laws,  and  organizing  the  publication  of  the 
outcomes of the proceedings. 

The ETA provides for a right to equal treatment and protection against discrimination of 
persons and bans discrimination of persons. According to Estonian law, only natural persons 
can be victims of discrimination. Liability applies to both legal and natural persons. 

Requirements  of  EU  law  and  transposition  schedules  are  monitored  by  the  Gender 
Equality  Department  officials,65  who  take  the  initiative  for  law  amendments,  prepare 
explanatory memorandums, involve other partners and present draft laws to MPs. There is a 
lack of capacity to monitor implementation of the equality law. The Department runs gender 
equality  programmes,  produces  reports,  and  organises  calls  for  national  and  international 
projects. 

In  Estonia  two  equality  bodies  exist:  the  Office  of  the  Chancellor  of  Justice 
(predominantly tribunal-type equality body; with an Ombudsman’s mandate) and the Gender 
Equality and Equal Treatment Commissioner (the Commissioner). The Chancellor of Justice 
should  verify  that  persons  are  not  being  discriminated  against  on  grounds  of  gender,  race, 
nationality,  colour,  language,  origin,  religion  or  religious  beliefs,  political  or  other  opinion, 
proprietary or social situation, age, disability, sexual orientation or other status referred to in 
law.  The  Chancellor  resolves  discrimination  disputes.  In  order  to  settle  a  discrimination 
dispute,  the  Chancellor  of  Justice  shall  initiate  a  conciliation  procedure  on  the  basis  of  an 
application. The consent of both parties is needed to start a conciliation procedure. 

The  Office  Gender  Equality  and  Equal  Treatment  Commissioner  has  increased  its 
number  of  employees  and  now  has  new  premises  thanks  to  the  Norwegian  Financial 
Mechanisms scheme.66 Today the Office has five employees, and three more will be recruited. 
Capacity  building  of  this  independent  equality  body  is  very  important,  because  the 
Commissioner’s opinions are a useful step prior to filing a court case. The Commissioner has 

65   The Gender Equality Department at the Ministry of Social Affairs employs about ten persons. 
66   From the EEA and Norway Grants, EUR 700 000 was allotted to capacity building of the Commissioner and 

the Office. It is intended to increase the staff to eight persons. The Norway Grants facility runs to 31 December 
2015. 

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stated that there are no legal experts on gender available in Estonia and she should work with 
gender experts and train them in legal issues.67 

On  24  October  2013,  the  Gender  Equality  Council  was  officially  established  at  the 
Ministry  of  Social  Affairs.  After  nine  years  Article  24  of  the  GEA  has  finally  been 
implemented.  The  Council’s  main  responsibilities  are  advising  the  Government  in  matters 
related  to  strategies  for  the  promotion  of  gender  equality,  approving  general  objectives  of 
gender equality policy, and presenting opinions to the Government concerning the compliance 
of national programmes with the obligation of gender mainstreaming. In the coming years, the 
Council will concentrate on the gender pay gap, gender balance in decision making,  gender 
stereotypes in the media, the educational system and the court system, and violence against 
women. Presently, there are 22 members.  

Legislation  provides  for  collective  agreements  at  national,  industry  and  company  level. 
At  national  level  there  are  a  number  of  tripartite  bodies  bringing  together  the  unions, 
employers  and  Government.  The  most  important  is  the  Social  and  Economic  Council. 
Tripartite negotiations have also been important in developing Estonia’s system of industrial 
relations, labour market policy, and the minimum wage. In practice, the most important level 
is  the  company  (or  organisational)  level  bargaining  in  private  and  public  sector.  If  an 
employer  has  signed  a  collective  agreement,  it  applies  to  all  employees,  irrespective  of 
whether or not they are union members. Agreements usually last for one or two years. For the 
majority  of  employees  in  Estonia,  working  conditions,  and  in  particular  pay,  are  fixed  in 
direct discussions between the employer and the individual worker.  

8. Overall assessment 

Estonia  has  transposed  the  requirements of  EU  equality  law. Transposition  was  possible by 
amending national laws, and no new laws were initiated in recent years. In 2008, new legal 
texts, the ECA and the ETA, were adopted. The preparation process of the ECA received a lot 
of  attention  and  involved  different  interest  groups  and  organisations.  At  the  same  time, 
amendments to existing laws for transposing EU equality directives were made without public 
debates.  However,  awareness  about  discrimination  and  equal  treatment  has  risen.  Still, 
awareness  and  protection  of  individual  rights  could  be  improved,  and  advice  from  equality 
bodies made more easily accessible and more effective.  

Gaps exist in the actual application and implementation of national equality legislation. 
Transposition of equality directives has taken place, while some Chapters of the GEA have 
not  been  revisited.  For  example,  according  to  Article  11(2)  of  the  GEA,  employers  have  to 
collect sex-segregated data, and the procedure for the collection of these data and a list of the 
data  concerned  was  expected  to  be  established  by  the  Government  of  the  Republic  by 
regulation. This regulation does not exist and the law has not been implemented. The lack of 
data  hinders  gender  impact  assessment,  in  general  as  well  as  in  the  drafting  of  legislation. 
Promotion  of  gender  equality  has  mainly  been  carried  out  within  the  framework  of 
international projects and national funding is poor. 

FINLAND – Kevät Nousiainen 

1. Implementation of central concepts 

The  main  legal  instrument  for  Finnish  gender  equality  law  is  the  Act  on  Equality  between 
Women  and  Men.  The  Act  was  originally  enacted  to  satisfy  the  requirements  of  the  UN 
Women’s  Rights  Convention  (CEDAW)  in  1986,  and  the  Act  reflects  the  ambitions  of  the 

67   Correspondence between the Gender Equality and Equal Treatment Commissioner and the Ministry of Social 
Affairs, 30 May 2014. http://dokumendihaldus.sm.ee/Letters/Forms/DispForm.aspx?ID=104661, accessed on 
1 June 2014.  

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Convention  for  example  by  having  a  broader  scope  of  application  than  EU  gender  equality 
law. Only religious practices of religious communities and family life fall outside the scope of 
the  Act.  The  Act  has  been  amended  several  times,  and  since  the  1990s,  amendments  have 
often  taken  place  in  order  to  implement  the  requirements  of  EU  gender  equality  law.  The 
main concepts in their present form are defined so as to correspond with the definitions in EU 
law. Direct discrimination is defined in the Act as ‘treating women and men differently on the 
basis of gender, or treating someone differently for reasons of pregnancy or childbirth’. The 
explicit  reference  to  pregnancy  discrimination  was  added  to  the  definition  for  reasons  of 
clarity. Indirect discrimination is defined as ‘treating women and men differently on the basis 
of  gender by  virtue  of  a  provision,  ground  or practice  that  appears  to  be  gender-neutral  but 
where the effect of the action is such that the person may actually find her/himself in a less 
favourable  position  on  the  basis  of  gender’.  The  definition  under  Finnish  law  requires  less 
proof by the person claiming discrimination than the definition under EU law, which requires 
proof  of 
‘particular  disadvantage’.  Harassment  and  sexual  harassment  constitute 
discrimination. Definitions of harassment and sexual harassment were introduced into the Act 
in 2009, and they literally repeat those in EU law, except for the clarification that harassment 
is conduct related to the sex of a person which is not sexual in character. An employer who, 
upon  being  informed  that an  employee  has been  the victim  of sexual  or  other  gender-based 
harassment,  neglects  to  take  steps  to  eliminate  this  harassment  discriminates  against  the 
employee.  Similar  provisions  apply  to  educational  institutions  (excluding  those  providing 
basic  or  primary  education)  –  here  Finnish  law  goes  further  than  EU  law  –  and  to  labour-
market organisations. 

Finnish equality law is oriented towards positive action and contains several provisions 
which  impose  positive  equality  duties  on  public  authorities,  employers  and  educational 
institutions.  In  all  public-nominated administrative  bodies,  a  minimum  of  40 % of  men  and 
women  is  required.  There  are  no  quotas  for  elections,  as  gender  balance  was  seen  to  be 
skewed  in  nominated  rather  than  in  elected  bodies.  Authorities  and  educational  institutions 
must create administrative and operational practices that advance equality in decision-making. 
Gender  balance  is  required  for  the  boards  of  directors  in  companies  with  majority  public 
ownership, but not other companies, which have introduced self-regulatory guidelines aimed 
at better gender balance in their company boards. Employers are to promote equal recruitment 
and  career  advancement,  promote  equality  of  terms  of  employment  and  facilitate  the 
reconciliation of family and working life. Employers of at least 30 persons must prepare an 
annual equality plan, which must assess the equality situation of the workplace (jobs held by 
women  and  men,  the  pay  for  the  jobs  and  pay  differentials),  and  present  a  plan  on  how 
equality  is  to  be  achieved.  Educational  institutions  must  prepare  an  equality  plan  and  pay 
attention to gender equality in student selections and performance assessment. Both EU law 
and the Finnish Constitution put limitations on what type of positive action is allowed. 

The  efficacy  of  the  provisions  regarding  positive  duties  is  weakened  by  a  lack  of 
sanctions.  Moreover,  the  prohibition  of  discrimination  under  the  Act  on  Equality  is  not 
backed up by sanctions in all matters within the material scope of the Act. A person who is 
discriminated against has legal remedies and the right to compensation mainly in those areas 
of life where remedies are required also under EU law. Equality authorities monitor the Act 
also  in  matters  where  remedies  for  individuals  are  not  available,  within  the  bounds  of  their 
resources. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The Act on Equality does not define pay, but the preparatory works to the Act refer to a broad 
definition.68 Pay discrimination under the Act is a situation where an employer applies pay or 

68   The original preparatory works for the Act explain that pay means all remuneration paid for work, and the 

preparatory works present different examples of what is to be considered pay (Government Bill HE 57/1985 vp 

90 

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other terms of employment so that the employee or employees are disadvantaged on the basis 
of  sex  compared  to  other  employees  performing  the  same  work  or  work  of  equal  value. 
Although  work  of  equal  value  is  expressly  mentioned,  it  is  difficult  to  implement  the 
provision. The Finnish labour market is strongly gender-segregated into ‘male’ and ‘female’ 
jobs, and also mainly regulated through collective agreements. It is difficult for an employee 
to receive information on the pay in other jobs, and comparing jobs under different collective 
agreements is a much-disputed issue. The difficulties are partly tackled by the requirement of 
the Equality Act that larger employers are to provide an assessment of pay differentials as a 
part  of  their  mandatory  equality  plan  for  the  workplace.  Employers  offer  many  types  of 
justifications  for  gender  pay  differentials,  such  as  education,  personal  performance,  work 
experience  and  personal  qualifications  of  the  employee.  Personal  performance  is  a  valid 
justification only if substantiated by an assessment. The scarcity of labour in certain tasks is 
considered  valid  justification  for  differentials  if  the  employer  can  prove  that  scarcity  really 
exists in the field in question. Finnish law does not require payment of salaries during family-
related  leave  periods,  during  which  parents  are  entitled  to  social  benefits.  Many  collective 
agreements,  however, include  an  entitlement  to salary  payment,  especially  during  maternity 
leave. The Finnish Labour Court has held that the condition of the collective agreement that 
confirms that the employee is entitled only to regular pay without the extra bonuses is valid.69 
The  question  of  whether  an  employee  who  begins  a  new  maternity  leave  directly  after  a 
family-related leave is entitled to pay also during this new maternity leave has been referred 
to the CJEU.  

2.2. Access to work and working conditions 
The  Act  on  Equality  prohibits  gender  discrimination  in  access  to  private  and  public 
employment, although the wording of the provision restricts ‘access’ to ‘employing a person’ 
or ‘selecting someone for a particular task or training’, thus excluding preparatory measures 
and  recruitment  policies. The  exceptions  to  the  prohibition include  ‘weighty  and  acceptable 
grounds  related  to  the  nature  of  the  job  or  the  task’,  which  refer  to  genuine  occupational 
requirements  in  EU  law.  The  Act  also  excludes  the  religious  practices  of  religious 
communities.  In  1986,  the  same  year  that  the  Act  was  enacted,  the  Evangelical  Lutheran 
Church  of  Finland  opened  its  ministerial  offices  to  women,  however.  Recent  case  law 
confirms that equal treatment under the Act on Equality is to be followed in church offices 
and other church jobs, even when they involve religious practices. The religious practices of 
other  religious  communities  remain  outside  the  scope  of  the  Act,  however.  The  sanctions 
under the Act on Equality do not apply to the acts of Members of Parliament or the President 
of  the  State  and  therefore  not  to  any  of  the  appointments  they  make.  Military  positions  are 
open to women, but with military service being compulsory for men and optional for women, 
fewer  women  have  the  necessary  qualifications.  Employers  must  not  manage  the  work, 
distribute  tasks  or  arrange  working  conditions  in  a  discriminatory  manner,  or  terminate  an 
employment  or  lay  off  an  employee  on  the  basis  of  gender.  The  provisions  are  binding  for 
both private and public employers. 

2.3. Occupational pension schemes 
The  Finnish  pension  system  differs  considerably  from  the  assumptions  that  underpin  EU 
gender equality law. Occupational pensions in the EU sense have been replaced by statutory 
occupational  schemes  that include  entrepreneurs and agricultural  entrepreneurs, and there is 
no prohibition which is specific to gender discrimination in occupational pension schemes as 
such schemes do not exist. It is confusing that state pension schemes for public servants fall 

Hallituksen esitys Eduskunnalle naisten ja miesten välistä tasa-arvoa koskevaksi lainsäädännöksi, p. 19-20). 
The Act underwent extensive reform in 2005, and the preparatory works for the definition of pay in EU law, 
but do not add a new definition for what is meant by pay under the Act on Equality (Government Bill 195/2004 
vp Hallituksen esitys Eduskunnalle laiksi naisten ja miesten välisestä tasa-arvosta annetun lain muuttamisesta) 
supra 2.2. 

69   Labour Court Decision TT: 2010-139. 

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within  the  scope  of  EU  occupational  pensions.  By  EU  criteria,  Finnish  municipal  and  state 
pension  schemes  should  be  considered  as  occupational,  while  other  quite  similar  statutory 
occupational  schemes  would  not.  Gender-specific  retirement  ages  existed  for  military 
personnel under the former Finnish state scheme, which the EU Court found discriminatory in 
the case of Niemi,70 but now the public as well as the private schemes are gender-neutral and 
non-discriminatory.  Individual  pension  schemes  are  sometimes  offered  as  part  of  an 
employment contract, but they are treated as private pensions, and their conditions fall under 
the protection of goods and services.  

3. Pregnancy and maternity protection, parental leave and adoption leave 

Treating  someone  differently  for  reasons  of  pregnancy  or  childbirth  is  defined  as  direct 
discrimination.  Employing  a  person,  selecting  her  for  a  task  or  training,  or  deciding  the 
duration of employment or pay or other terms of employment so that the person finds herself 
in a less favourable position on the basis of pregnancy or childbirth constitutes employment 
discrimination  on  the  ground  of  gender.  Treating  someone  differently  on  the  basis  of 
parenthood is defined as indirect gender discrimination. The provision also protects men with 
family  responsibilities  and  is  more  favourable  to  victims  of  discrimination  than  EU  law  is. 
Persons returning from family-related leave are entitled to return to former duties under the 
Employment  Contract  Act,  which  also  prohibits  discrimination  on  the  basis  of  family 
relations. If an employer terminates the job of a pregnant worker or a person on family-related 
leave, the termination is presumed to be on the ground of pregnancy or such leave. Family-
related forms of leave are similar in both the private and public sectors.  

Employees  are  entitled  to  leave  during  maternity  and  paternity,  and  to  parental  leave 
periods,  during  which  they  receive  income-related  benefits  from  the  sickness  insurance 
system.  Maternity  leave  and  benefits  cover  around  four  months,  after  which  parental  leave 
and  benefits  are  available  until  around  11  months  from  the  beginning  of  maternity  leave. 
After that, a parent has the right to remain on so-called home care leave until the child is three 
years old, and return to his or her job after that. The home care leave merely provides a flat-
rate  benefit.  Parental  leave  is  transferable  between  parents,  and  home  care  leave  is  also 
available to mothers and fathers. These leaves are mainly taken by mothers. Paternity benefits 
are  reserved  for  the  father.  After  an  amendment  in  2012,  paternity  benefits  are  paid  for  a 
period of 36 weekdays (six weeks) provided that the mother is not on maternity or parental 
leave simultaneously. Thus, this non-transferable period is earmarked for the father as a solo 
care-giving parent. If the father does not use his right, the leave and benefits are lost.  

4. Statutory schemes of social security 

Employed persons in the public and private sectors, self-employed persons, entrepreneurs and 
agricultural  entrepreneurs  are  covered  by  statutory  insurance  schemes  against  old  age, 
invalidity  and  sickness,  including  short-term  incapacity  to  work.  As  stated  above,  these 
statutory  schemes  are  in  fact  a  hybrid  between  occupational  and  statutory  social  insurance. 
The  social  insurance  system  is  in  practice  highly  uniform,  although  different  types  of 
occupation  are  regulated  under  different  pieces  of  legislation.  The  schemes  are  paid  by  the 
insured  person  and  his  or  her  employer  on  a  statutory  basis,  and  protect  persons  in  gainful 
occupations.  After  the  recent  reforms,  the  time  spent  on  family-related  leave  is  a  pension 
credit.  The  statutory  schemes  are  gender-neutral  as  to  the  obligation  to  contribute,  the 
contributions, and the benefits including survivors’ benefits; the military pension scheme that 
was  at  stake  in  Niemi  was  exceptional  and  was  considered  void  even  before  the  scheme  in 
question  was  amended  in  2005.  The  universal,  residence-based  national  pension  scheme 
guarantees a  minimum  income  to  those  who  do  not  receive such  income  from  occupational 
schemes.  The  national  pension  is  coordinated  with  occupational  statutory  pensions  so  that 

70   Case C-351/00 Pirkko Niemi [2002] ECR I-7007. 

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occupational pension benefits reduce the amount paid from the national pension scheme. The 
national  pension  remains  important  especially  for  elderly  women  without  an  employment 
history. The general prohibitions on discrimination on the basis of gender in the Constitution 
and the Act on Equality cover social insurance. 

5. Self-employed persons 

The term ‘helping spouse’ no longer exists under Finnish law. Persons who have an income 
from  occupational  activity  without  being  employees  are  considered  as  entrepreneurs.  An 
entrepreneur  shall  insure  him/herself  under  the  entrepreneurs’  or  agricultural  entrepreneurs’ 
pension  schemes.  In  a  family  enterprise,  family  members  can  be  owners,  entrepreneurs  or 
employees, but an entrepreneur cannot deduct pay and social security costs paid to a spouse 
from  the  occupational  income.  There  are  no  legal  obstacles  to  spouses  establishing  an 
enterprise  together,  or  both  spouses  being  defined  as entrepreneurs.  Social  benefits,  such as 
maternity  benefits,  are  paid  from  the  insurance  scheme.  The  contributions  are  based  on  an 
annual income estimation, corresponding to what would be paid to an outsider for the job in 
question.  Persons  defined  as  entrepreneurs  in  a  family  enterprise  have  sometimes  found  it 
difficult to convince the authorities that they are in fact unemployed and no longer gainfully 
occupied in the family enterprise. Farmers are considered entrepreneurs with a specific social 
security scheme. The income from family farms must be divided between the spouses. Unless 
the spouses propose otherwise, the income shall be divided 50/50. A minimum of one third is 
not transferable between them. Maternity, paternity and parental leave benefits are paid to all 
parents,  gainfully  occupied  or  not,  but  the  level  of  the  benefits  varies  on  the  basis  of 
occupational income. For agricultural entrepreneurs, temporary replacements are provided for 
parents  on  family-related  leave,  but  there  is  no  organised  stand-in  service  for  other 
entrepreneurs.  The  family-related  benefits  for  entrepreneurs  and  the  temporary  replacement 
system in agriculture exceed the requirements of EU gender equality law. 

6. Goods and services 

An amendment of the Act on Equality that came into force at the beginning of 2009 provides 
that it is to be considered as discrimination if a supplier of goods and services puts a person 
into a disadvantageous position, or causes him/her to be the target of adverse consequences 
after  s/he  has  claimed  her  rights  or  become  involved  in  a  procedure  concerning  gender 
discrimination.  Although  such  discrimination  was  also  prohibited  before  under  the  general 
prohibition of gender discrimination, before the amendment compensation was not available 
for persons denied access to goods and services on the grounds of sex. 

The  use  of  sex  as  an  actuarial  factor  in  the  calculation  of  insurance  premiums  and 
benefits in insurances sold to consumers was prohibited under insurance legislation after 21 
December  2012  in  new  insurance  policies,  and  by  1  July  2013  also  in  older  policies.  The 
amendment was caused by the requirements of EU law following the Test-Achats case. As use 
of sex as an actuarial factor is only prohibited in policies sold to consumers, the use of sex is 
still  allowed  in  insurance  schemes  that  are  sold  to  employers.  Employers  may  therefore 
provide extra protection for their personnel through non-mandatory group or other insurance 
schemes which use sex as an actuarial factor. 

7. Enforcement and compliance aspects 

A  person  who  has  availed  him/herself  of  the  remedies  or  been  partly  involved  in  settling  a 
discrimination matter is protected against victimisation by the Act on Equality. The burden of 
proof in discrimination cases is divided between the alleged victim and the defendant so that 
if the victim shows facts on the basis of which discrimination can be presumed, it is for the 
defendant to show that there has been no violation. Under penal law, the burden of proof in 
discrimination cases lies with the prosecutor or the victim. Various remedies are available for 
victims of discrimination. Compensation claims under the Act on Equality are brought to the 

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ordinary courts, and compensation is determined in each case depending on the nature of the 
violation. Even the minimum compensation of EUR 3 240 can be reduced or waived due to 
the offender’s financial situation or other circumstances of the case. Compensation under the 
Tort  Liability  Act  and  the  Employment  Contracts  Act  can  also  be  paid  to  the  victim  of 
discrimination, but then the rules on the burden of proof are different. Tort liability requires 
that the defendant has acted intentionally, which is not required in discrimination cases under 
the  Act  on  Equality.  Because  the  compensation  can  be  reduced  or  waived,  it  is  doubtful 
whether the relevant EU-law standard is fully met. At present, the maximum compensation in 
cases  concerning  access  to  employment  is  capped  at EUR  16 210  for  those  candidates  who 
would not have been chosen for the task even if no discrimination had taken place, but after 
an amendment of the Act on Equality in 2009 the maximum was removed in relation to the 
candidate with the greatest merits, who but for discrimination would have been appointed. No 
maximum is set for other situations where discrimination takes place. Judicial remedies also 
exist under administrative law, when the decision made by an administrative body is claimed 
to  be  discriminatory  and  thus  void.  Administrative  law  can  in  these  cases  offer  a  stronger 
remedy  than  compensation,  as  the  victim  can  be  reinstated  in  office  or  be  nominated  to  a 
position  that  was  wrongfully  denied  to  him  or  her.  The  Equality  Ombudsman  has  the 
competence  to  assist  a  party  in  a  case  involving  compensation  when  the  case  is  of  general 
interest.  In  practice  this  does  not  happen.  The  Labour  Court  decides  all  cases  involving 
collective agreements, but the victims of discrimination have no direct access to the Labour 
Court, as only social partners can initiate cases there. Labour-market organisations often assist 
their members in discrimination cases, but have no official standing when doing so; neither 
have other stakeholders such as women’s associations. The remedy system is complicated. 

There is no access to mediation or another less burdensome procedure than the ordinary 
courts. The Ombudsman for Equality and the Equality Board are the bodies that supervise the 
implementation  of  the  Act  on  Equality.  The  Ombudsman  mainly  has  consultative  and 
supervisory  competence.  The  Equality  Board,  whose  members  represent  working  life  and 
equality expertise, is nominated by the Government. The Board can prohibit the continuation 
of  a  discriminatory  practice.  Discriminatory  advertising  for  a  vacancy,  discrimination  in 
appointing an employee or discrimination at work, as well as discriminatory advertising for a 
place in education are also punishable under the Finnish Penal Code. 

8. Overall assessment 

EU gender equality law has mainly been implemented correctly in Finland. Because Finnish 
gender  equality  law  precedes  the  country’s  membership  of  the  EU,  and  because  the  social 
security  system  differs  from  the  general  European  model,  there  are  problems  in  assessing 
implementation. The remedy system under Finnish law could be less complicated and allow 
more  room  for  associations  and  other  stakeholders.  The  compensation  system  is  not 
completely  satisfactory  from  the  European  point  of  view,  but  the  amendment  in  2009 
removed the problem of limited compensation in cases of access to employment. There is a 
longer  tradition  of  gender-neutral  legislation  in  Finland  than  in  most  European  States,  and 
provisions on positive action and the reconciliation of family and working life exceed what is 
required by EU gender equality law.  

FRANCE – Sylvaine Laulom 

1. Implementation of central concepts 

Until May 2008, the main concepts of EU gender discrimination law had not been properly 
implemented in France, as French legislation included no legal definition of the concepts of 
direct  and  indirect  discrimination,  although  courts  have  applied  the  European  definitions  in 

94 

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gender  case  law.  The  Act  adopted  on  15  May  2008  defines  these  concepts,  mostly  in 
accordance  with  the  European  definition.71  The  Act  applies  to  public  and  private 
relationships. According to this Act, there is direct discrimination where one person is treated 
less  favourably  on  grounds  of  sex  than  another  is,  has  been  or  will  be.  Courts  interpret  the 
French definition in compliance with the European one. Indeed, for the Cour de cassation ‘the 
existence  of  discrimination  does  not  necessarily  imply  a  comparison  with  other  workers’.72 
The  definition  of  indirect  discrimination  is  now  the  same  as  the  European  one.  There  have 
been very few cases on indirect discrimination. However, since 2012 the Cour de cassation 
has applied this concept in several cases.73 

Concerning  positive  action,  the  Labour  Code  recognises  the  possibility  to  take  positive 
action  through  temporary  measures  laid  down  by  decree  or  by  collective  agreements  at 
sectoral levels and some collective agreements organise some positive action. The reform of 
the Constitution, adopted at the end of July 2008, includes an amendment which will facilitate 
positive  actions.  Thus  a  bill  introducing  a  quota  in  company  boards  was  adopted  on  27 
January 2011.74 The bill intends to improve the representation of women in company boards 
and it imposes a quota for each sex. Firms which have more than 500 employees and revenues 
over EUR 50 million will have to ensure that each sex has at least 20 % of boardroom seats 
within 3 years, and 40 % in 6 years.  

As  provided  by  the  Directive,75  discrimination  now  also  includes  the  instruction  to 
discriminate against persons on grounds of sex (or the other grounds). At first, harassment and 
sexual harassment were not defined in relation to discrimination. The 2008 Act adds a new 
definition to these concepts, as required by EU law. However, the new Act has not repealed 
the  existing  definitions.  This  could  create  some  problems  of  coordination  as  two  different 
definitions of harassment could now concurrently apply.  

Another  problem  is  that  the  new  definition  of  sexual  harassment  was  found 
unconstitutional by the French Constitutional Court, which states that the definition was not 
sufficiently  clear  or  precise.76  The  decision  came  as  a  bombshell,  as  it  removed  the 
prohibition  on  sexual  harassment  from  the  French  criminal  code.  This  decision  and  more 
importantly its consequences were clearly unexpected, as the decision left a legal vacuum in 
the  Criminal  Code,  given  its  immediate  effect.  The  main  consequence  of  this  decision  was 
that as from the date of its publication no one could be convicted or punished on the ground of 
sexual harassment, as the offence no longer existed, and alleged offenders were systematically 
discharged.  The  new  French  legislature  quickly  addressed  this  issue  and  a  new  law  was 
adopted in August 2012. It includes a new definition of sexual harassment, very similar to the 
European one, and the sanctions have been strengthened. The new law defines harassment as 
imposing on someone, in a repeated manner, words or actions that have a sexual connotation 
and either affecting the person’s dignity because of their degrading or humiliating nature or 
putting him or her in an intimidating, hostile or offensive situation.77 One single act can also 
give rise to prosecution where someone is using any kind of serious pressure, with the real or 
visible goal of obtaining an act of a sexual nature (Article 222-33 of the Criminal Code).  

71  Loi no. 2008-496 du 27 mai 2008, portant diverses dispositions d’adaptation du droit communautaire dans le 

domaine de la lutte contre les discriminations.  

72   Soc. 10 November 2009, No. 07-42849, Bulletin and Soc. 29 June 2011, No. 10-14067, Bulletin.  
73   Soc. 6 June 2012, No. 10-21489 and Soc. 3 July 2012, No. 10-23013. Soc. 15 January 2014, No. 12-20688. 
74   Loi no. 2011-103 du 27 janvier 2011, JO no. 23 du 28 janvier 2011, loi relative à la représentation équilibrée 

des femmes et des hommes au sein des conseils d’administration et de surveillance et à l’égalité 
professionnelle. 

75   Directive 2006/54/EC OJ L 204/23 of 5 July 2006 on the implementation of the principle of equal 

opportunities and equal treatment of men and women in matters of employment and occupation (recast). 

76   CC 4 May 2012, QPC, No. 2012-240. 
77   See Crim. 14 January 2014, No. 11-81362. 

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2. Equal pay and equal treatment at work  

2.1. Equal pay 
The Labour Code provides for equal pay for men and women ‘for the same job or a job of 
equal value’. The definition of remuneration that it gives is the same as Article 157 TFEU. 
The principle of equal pay also applies in the public sector. Much of the case law on equal 
pay raises the issue of the possible justification for unequal pay. Differentiation is therefore 
possible  on  the  basis  of  an  objective  reason  like  seniority,  efficiency,  quality  of  work,  or 
difference in job classification. However, most of the time this litigation is not based on sex 
discrimination but on a difference between one worker and others placed in the same situation 
as a general principle of equal pay for equal work applies in France. 

Some provisions go further than what EU law requires, in involving the social partners. 
There is now an obligation to negotiate on equal pay at sectoral level and in enterprises. In 
order  to  ensure  the  effectiveness  of  mandatory  bargaining,  specific  information  must  be 
provided on the situation of male and female workers including a comparison between both 
groups. In order to improve the content of collective agreements on equal pay,78 sanctions are 
now  prescribed  when  enterprises  employing  at  least  50  employees  have  not  concluded  any 
agreement on sex equality.  

2.2. Access to work and working conditions 
French  law  needed  some  adaptations  in  the  1980s  and  1990s.  For  example,  it  was  only  in 
2001 that the prohibition of night work for women was abolished. Now, the implementation 
of  Directive  2006/54/EC  seems  satisfactory.  The  protection  of  employees  from  sex 
discrimination  covers  every  aspect  of  working  life.  As  provided  by  the  Directive,  any 
provision  contrary  to  the  principle  of  equal  treatment  which  is  included  in  collective 
agreements  or  contracts  of  employment  is  null  and  void.  Exceptions  are  very  few.  Article 
L.1142-2  states  that  the  prohibition  of  discrimination  does  not  apply  when  the  sex  of  the 
worker  constitutes  a  determining  factor  in  employment  and  that  the  objective  sought  is 
proportionate  and  the  exception  is  also  proportionate.  A  decree  also  defined  the  types  of 
employment concerned: it only covers actors and models. Some other exceptions still exist. 
For example, it seems that the navy has not yet opened up posts on submarines to women. A 
few exceptions also exit in some specific police forces (e.g. the gendarmerie mobile).  

2.3. Occupational pension schemes 
Article L.913-1 of the Code of Social Security ensures the implementation of Recast Directive 
2006/54/EC and states that any clauses in agreements, decisions, and contracts which are in 
breach of the non-discrimination principle are null and void. As provided by the Directive, the 
prohibition of discrimination in occupational social security schemes applies to the working 
population including the self-employed. 

The Griesmar case clearly highlights some of the French difficulties in implementing the 
Directive in occupational pension schemes.79 In French occupational pensions, various family 
benefits used to exist which favoured women in particular in order to compensate for the time 
they  spent  raising  children.  After  the  Griesmar  case,  many  developments  took  place  in  the 
field of pensions. However, there are still some special pension schemes embodying similar 
discrimination between men and women. Cases are regularly brought before the courts and, 
following the Griesmar case, the Cour de cassation and the Conseil d’Etat have recognised 
the existing discrimination.80 These special pension schemes are currently being renegotiated. 

78   Loi No. 2010-1330, 9 Novembre 2010 portant réforme des retraites, Décret No. 2011-822, 7 juillet 2011, JO 

9 juillet, p. 11930. 

79   Case  C-366/99  Joseph  Griesmar  v  Ministre  de  l'Economie,  des  Finances  et  de  l'Industrie  et  Ministre  de  la 

Fonction publique, de la Réforme de l'Etat et de la Décentralisation [2001] ECR I-09383.  

80   See,  for  example,  Conseil  d’Etat,  7  June  2006  case  No.  280 126  or  Cour  de  cassation,  8  July  2004,  case 

No. 03-30210, also see the HALDE’s deliberations, No. 2006-39 and 2006-201. 

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3. Pregnancy and maternity protection, parental leave and adoption leave 

The period of maternity leave is six weeks before the presumed date of confinement and ten 
weeks  after  confinement;  the  same  provisions  apply  to  civil  servants.  During  her  maternity 
leave,  the  worker  is  entitled  to  maternity  benefits  on  condition  that  she  has  been  registered 
under the social security system for at least ten months on the presumed date of confinement. 
The amount of the maternity benefit is calculated on the basis of the average salary received 
over the last three months. Many collective agreements nevertheless provide that the worker 
receives full pay during maternity leave. At the end of her maternity leave, the worker will be 
reinstated in her previous job or given similar work.81 The wages must be increased after the 
maternity leave in order to follow any general increases received by individual co-workers of 
the same category during the period of the employee’s leave.  In  general, the worker is also 
entitled to all the advantages occurring during her leave that she would have been entitled to if 
she  had  not  taken  maternity  leave.  She  is  entitled  to  normal  paid  leave  and  to  the  normal 
rights to vocational training as if she had not been absent.  

Dismissal  is  prohibited  from  the  beginning  of  the  pregnancy  until  four  weeks  after  the 
end of the maternity leave82, even if the employer was not notified of the pregnancy, except in 
the  event  of  a  serious  fault  by  the  worker  or  if  the  dismissal  is  objectively  necessary  for 
reasons not linked to pregnancy, confinement or adoption. The Cour de cassation has allowed 
a right of reinstatement when this rule is infringed.83  

According to the Labour Code and to civil servant statutes, any worker, irrespective of 
the size of the enterprise, has an individual right to parental leave in the case of the birth or 
adoption of a child, if the employee has been working in the enterprise for at least one year 
before the birth or adoption of the child. The period of parental leave is initially for one year, 
and can be renewed twice until the child is three years old. Parental leave can be granted on a 
full-time or part-time basis. During parental leave, the employment contract is suspended and 
after parental leave, the worker has the right to return to the same job or, if this is not possible, 
to an equivalent or similar job, where the same advantages apply as before. Parental leave is 
unpaid  but  employees  could  be  eligible  for  specific  allowances.  However,  as  the  level  of 
allowances is low, the parental leave is mostly taken by low-qualified women and could lead 
to some women withdrawing from the labour market.84  

Since  2001,  paternity  leave  has  been  recognised  for all  fathers  who  are  employees  and 
civil  servants.  Paternity  leave  is  eleven  consecutive  days  for  the  birth  of  a  single  baby. 
Paternity  leave  is  paid  by  the  social  security  scheme  up  to  a  ceiling  and  could therefore  be 
unattractive for executives. Some companies have adopted full pay for fathers in terms of a 
‘parent-friendly’  measure.  The  Cour  de  cassation  held  that  paternity  leave  is  a  right 
recognised for the father of a child and there is no sex discrimination in refusing the benefit to 
the female partner of the mother.85 

In  many  respects,  French  provisions  go  further  than  European  law,  mostly  because 
maternity  leave  and  specifically  parental  leave  are  longer  than  the  European  minimum 
required and also because it also includes a paternity leave. This is also why no new elements 
have  been  needed  to  transpose  Directive  2010/18/EU.86  However,  parental  leave  is  mostly 
taken by women. 

81   See Soc. 3 February 2010, No. 08-40.338. 
82   See Soc. 30 April 2014, No. 13-12321: the 4-week period of protection is suspended during the paid leave 

when it is taken directly after the maternity leave. 

83   30 April 2003, Bull, No. 152. 
84   See Dares, Premières Synthèses, Pourquoi certaines femmes s’arrêtent-elles de travailler à la naissance d’un 
enfant?, Juillet 2003, no. 29.2 and Credoc Dossier d’études, Congé parental et carrières professionnelles des 
mères, no. 147, 2011. 

85   Cass, 2ème civ. 11 March 2010, No. 09-65853. 
86   The only measure implementing Directive 2010/18 has been a decree adopted on 18 September 2012 (Decree 
No. 2012-1061), which modifies the rule for parental leave for public servants. The decree recognises parental 
leave as an individual right. Before, for public servants, the mother and the father could take the parental leave 
or could share it but could not take it simultaneously. This is now possible. 

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4. Statutory schemes of social security  

Statutory social security schemes respect the principle of equality between men and women. 
First, the French legislator has chosen to implement the exception in Article 7(b) of Directive 
79/7/EEC according to which Member States can exclude from the scope of their legislation 
the advantages in respect of old-age pension schemes granted to persons who have brought up 
children. However, a new provision included in the law to finance social security in 2010 was 
adopted  in  December  2009.87  As  for  civil  servants,  a  specific  right  for  women  linked  to 
maternity  has  been  maintained:  increased  insurance  coverage  for  pensions  in  the  private 
sector for a maximum of one year for women who have given birth to one or more children. 
For  the second  year,  the  mother  will  continue to  benefit  from  another increase in  insurance 
coverage for children born before 1 January 2010, except if the fathers can prove, in the year 
following  the  publication  of  the  law,  that  they  have  raised  their  children  on  their  own.  For 
children  born  after  1  January  2010,  the  mother  will  continue  to  benefit  from  an  increased 
insurance coverage for a second year, if there is agreement between the father and the mother, 
expressed  in  the  six  months  following  the  child’s  4th  birthday.  If  there  is  disagreement 
between the parents, the advantage will be granted to the parent who can prove that he/she has 
contributed more and for a longer period to the education of the child. If both parents have 
contributed equally to the child’s education, the benefit will be divided into two.  

5. Self-employed persons 

In French law, there are some binding provisions that protect women engaged in an activity in 
a self-employed capacity. The conditions under which a company is formed are the same for 
both  married  and  unmarried  couples.  Since  2005,  the  spouse  of  a  self-employed  worker, 
participating  in  the  spouse’s  activity,  has  to  decide  whether  he/she  wishes  to  work  in  the 
business as an employee, as a partner or as a co-working spouse (conjoint collaborateur). In 
this case, the spouse can apply for sickness benefits and he/she must contribute to a pension 
scheme.  She/he  can  also  apply  for  a  daily  maternity  benefit  plus  a  benefit  for  temporary 
replacement. The spouse can also apply for a benefit for temporary replacement for paternity 
leave. Self-employed women have a right to a daily maternity benefit for a period of 44 days, 
a  period  which  can  be  extended  by  twice  15  days.  The  maximum  period  for  this  benefit  is 
therefore  74  days,  which  is  less  than  the  14  weeks  provided  by  Directive  2010/41/EU. 
Specific rules can apply to various categories of self-employed workers. For example, since 
2012, associated lawyers have the right to a maternity leave of 16 weeks (as opposed to 12 
before). The extension of this period is a result of Directive 2010/41/EU. 

6. Goods and services 

Directive  2004/113/EC  has  been  implemented  without  much  debate  by  two  Acts.  The  first 
Act of December 2007 reproduces Article 5 of the Directive.88 The 2008 Act also reproduces 
the  scope  of  and  most  of  the  exceptions  in  Directive  2004/113/EC.  It  provides  a  general 
prohibition  of  direct  or  indirect  discrimination  based  on  sex  in  the  access  to  and  supply  of 
goods and services. The Act also adopts the exception by using almost the same terms as the 
Directive.  However  the  Act  does not exclude, as  the Directive  does,  the  non-discrimination 
principle for the content of media or advertising. Concerning public or private education, the 
Act merely states that the non-discrimination principle does not prohibit the organisation of 
non-mixed schools.  

French  legislation  made  use  of  the  exemption  from  the  principle  of  equal  treatment 
allowed  by  Article  5  Paragraph  2  of  Directive  2004/113/EC.  The  Test-Achats  ruling  was 

87   Article 65 of Act No. 2009-1646 of 24 December 2009, loi de financement de la Sécurité Sociale pour 2010. 
88   See the new Article 117-1 of the Code of Insurance.  

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enforced in December 2012.89 A ministerial order adopted on 18 December 2012 states that 
gender differentiations can only apply to insurance contracts concluded before 20 December 
2012  or  those  which  are  tacitly  renewed.90  The  implementation  of  the  Test-Achats  ruling 
occurred at the last  moment  possible.  Several  months  later,  a  Bill  was  adopted91  modifying 
Article L 111-7 of the Insurance Code, to delete any reference to gender differentiations. The 
implementation of Directive 2004/113/EC seems satisfactory and the Test-Achats ruling has 
been taken into account. However, the Directive and the French legislation are not very well 
known and no case law has been published on the interpretation of the Directive, for example. 

7. Enforcement and compliance aspects 

Different  rights  are  also  recognised  to  facilitate  the  bringing  of  claims  regarding 
discriminatory actions and the referral of such cases to the Courts.  

Concerning victimisation, the Labour Code states that no employee can be the subject of 
disciplinary action, be dismissed or be subject to a discriminatory act for having testified to 
having  witnessed  discrimination  or  having  talked about this  and the 2008  Act has  extended 
the scope of this provision to the public sector.  

The  burden  of  proof  has  been  amended,  first  by  case  law  influenced  by  the  European 
directives and by CJEU decisions,92 and then by the Act of 16 November 2001. Employees or 
job applicants who feel that they have been discriminated against must present the court with 
evidence ‘that leads one to believe that direct or indirect discrimination has taken place’. In 
the  light  of  this  evidence,  it  is  up  to  the  defendant  to  ‘prove  that  the  decision  taken  was 
justifiable  according  to  objective  facts  that  had  no  connection  with  any  form  of 
discrimination’.  

Recently, the Cour de cassation heard a case similar to the Meister case.93 For the Cour 
de cassation, respecting an employee’s personal life and respecting the employer’s business 
secrets are not in themselves an obstacle to the application of Article 145 of the Code of Civil 
Procedure,94 when a national Court finds that the requested measures are legitimate and are 
necessary for the protection of the rights of the party who has requested them. The Court of 
Appeal  was  right  in  deciding  that  the  employees  had  a  legitimate  aim  in  demanding  the 
communication  of  information  necessary  for  the  protection  of  their  rights,  information  that 
only the employer had and that he refused to communicate.  
  As to remedies and sanctions, in France these meet the European standards and they are 
proportionate and effective. Any discriminatory actions by employers are regarded as null and 
void,  and the  employee  retains all  previously  held rights.  In  the  context of a  dismissal,  this 
means  that  any  dismissal  on  discriminatory  grounds  could  be  annulled  and  a  worker 
dismissed on a discriminatory ground can claim her/his reinstatement and he/she is regarded 
as never having left the job. This is a specific sanction for discriminatory acts. In a case where 
the employee does not want to continue the employment relationship, he or she is eligible for 
a  compensatory  payment  equal  to  at  least  the  previous  six  months’  wages  as  well  as 
compensation granted for unlawful dismissal. In situations other than dismissal the sanction is 
compensation that should entirely compensate the damage. Penal sanctions are also possible 
even if they are rarely used. Under the Labour Code the employer risks a maximum of one 
year  imprisonment  and  a  fine  of  EUR  3 750.  Under  the  Criminal  Code  the  employer 

89   Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseils des ministres 

[2011] ECR I-00773. 

90   Order of 18 December 2012, on equality between men and women in insurances, JO 20 December 2012. 
91    Bill No. 2013-672, July 2013, on the regulation of banking activities. 
92   See Cour de cassation, 23 November 1999, Bull. V No. 447.  
93   Case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH [2012] (n.y.r.). 
94   According to this Article, ‘If there is a legitimate reason to preserve or to establish, before any legal process, 
the evidence of the facts upon which the resolution of the dispute depends, legally permissible preparatory 
inquiries may be ordered at the request of any interested party, by way of a petition or by way of a summary 
procedure’. 

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additionally  risks  a  maximum  of  three  years’  imprisonment  and  a  fine  of  EUR  45 000  for 
certain more serious infringements. 

Access  to  the  courts  is  also  safeguarded.  The  right  to  bring  a  court  case  concerning  a 
discrimination claim has also been extended under certain conditions to representative trade 
unions and to associations which have been legally established for at least five years.  

The  Defender  of  Rights  (who  replaced  the  former  HALDE)  is  an  independent 
administrative  body.  His  mandate  covers  all  forms  of  direct  and  indirect  discrimination 
prohibited by French legislation or in international agreements ratified by France. Victims of 
discrimination  may  directly  present  their  case  to  the Defender  of  Rights.  Without  replacing 
the traditional channels for redressing discrimination within the legal system, the Defender of 
Rights  can  identify  discriminatory  practices.  The  Defender  of  Rights  can  also  help  victims 
make  a  case  against  agents  of  discrimination  and,  thanks  to  special  powers,  carry  out  an 
investigation  and  demand  explanations  from  defendants,  by  conducting  hearings  and 
collecting  other  evidence,  including  the  gathering  of  information  on  site.  It  can  issue 
recommendations and publish them thus encouraging the defendant to comply with them. 

Through  the  obligation  to  annually  negotiate  on  equality  and  on  the  gender  gap,  the 
legislator intends to induce the social partners to play an active role in the implementation of 
gender equality law. The possibility that trade unions have to bring a court case on behalf of 
an employee also gives trade unions a role in the enforcement process.  

8. Overall assessment 

long, 

implementing 

the  process  of 

the  directives  has  been 

Although 
the  overall 
implementation  seems  satisfactory.  In  some  respects,  French  law  goes  further  than  the 
European obligations, for example in providing for longer parental leave, for paternity leave, 
or by obliging the social partners to negotiate on the pay gap. However, even if formally the 
situation is satisfactory, for years there has been very little litigation on equality issues and, 
moreover, most of the litigation has concerned men claiming the same rights as women (see, 
for example, the Griesmar case). Some elements reveal an evolution. Generally, the number 
of cases on discrimination brought before the courts is increasing. Lawyers, judges and legal 
literature  are  becoming  more  familiar  with  the  instruments  of  discrimination  regulation  and 
this will have consequences for sex discrimination.   

GERMANY – Ulrike Lembke 

1. Implementation of central concepts 
Germany’s  main  law  implementing  EU  gender  discrimination  law  is  the  General  Act  on 
Equal Treatment (AGG; Allgemeines Gleichbehandlungsgesetz95). It defines the four concepts 
of  discrimination  –  direct  and  indirect  discrimination,  harassment  and  sexual  harassment  – 
with the same wording as the European anti-discrimination directives. The law employs the 
term  ‘putting  at  a  disadvantage’  (‘Benachteiligung’)  instead  of  ‘discrimination’  (‘Diskri-
minierung’),  but  does  not  mean  to  weaken  the  protection  as  compared  to  the  European 
directives.  The  legislator  intended  to  emphasise  that  only  unjustified  different  treatment 
deserves  the  negative  term  of  discrimination.  The  Federal  Constitutional  Court  explicitly 
recognised  the  European  concept  of  indirect  gender  discrimination  as  also  applying  under 
German  constitutional  law.96  The  instruction  to  discriminate  is  also  understood  as  being 
discrimination, and it is not limited to instruction to discriminate against an employee.  

95   Allgemeines Gleichbehandlungsgesetz of 14 August 2006, Official Journal (Bundesgesetzblatt BGBl), part I 

p. 1897.  

96   Many German courts, however, still face difficulties when applying the concept of indirect discrimination, see 

U. Sacksofsky Mittelbare Diskriminierung und das Allgemeine Gleichbehandlungsgesetz Berlin 2010.  

100  

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Positive action is explicitly permitted if used to prevent or offset disadvantages based on 
gender.  This  applies  to  the  area  of  employment  as  well  as  to  the  provision  of  goods  and 
services.  According  to  the  Federal  Constitution,  public  entities  are  even  under  a  duty  to 
further  women’s  equality  in  actual  practice.  As  a  consequence,  the  federal  level  and  the 
federal states have enacted laws to further equality between the sexes. Most of them oblige 
public  institutions  to  enact  plans  to  increase  women’s  representation  on  all  levels  of 
employment, and to hire or promote women instead of an equally qualified man, unless there 
are  exceptional  reasons  to  decide  in  favour  of  the  male  candidate.  In  contrast,  there  are  no 
laws  obliging  private  enterprises  to  promote  women’s  equality.  On  11  December  2014,  the 
federal  Government  presented  a  draft  law  on  a  statutory  30  %  minimum  gender  quota  for 
supervisory  boards  of  listed  and  co-determined  private  companies  by  2016.  In  addition,  it 
presented 
the  Statute  on  Bodies  within  Federal  Control 
(Bundesgremienbesetzungsgesetz) to ensure a 30 % minimum gender quota by 2016, and aim 
for 50 % by 2018.97   

amendments 

to 

2. Equal pay and equal treatment at work  

2.1. Equal pay 
The  prohibition  of  discrimination  with  regard  to  pay  is  covered  by  Section 2(1)(2)  of  the 
General  Equal  Treatment  Act,  which  prohibits  any  discrimination  on  the  grounds  of  sex  in 
relation  to  employment  and  working  conditions,  including  pay,  in  particular  in  contracts 
between  individuals  and  in  collective  agreements.  Furthermore,  possible  justifications  for 
different  treatment  do  not  include  a  lower  rate  of  remuneration  for  the  same  or  equivalent 
work on the grounds of sex/gender on account of special (protective) regulations applying to 
sex/gender.  

The AGG cannot implement the provisions of Directive 2006/54/EC due to the date of its 
entry into force, but the Federal Government claims that the broad scope of the AGG covers 
all  provisions in the  Directives.  Differing  from  the  preceding  regulation, the  AGG  does not 
contain an entitlement to equal pay but a general prohibition of discrimination, and the courts 
state that there is no legal rule providing for the same pay for the same work, neither under 
the  AGG  nor  in  German  law  in  general.98  The  term  ‘pay’  is  not  defined  in  the  AGG  but 
interpreted in an extensive way, and includes all benefits granted by the employer. It therefore 
covers  the  salary  and  all  other  contributions  of  financial  value,  such  as  one-off  payments, 
premiums, benefits in kind or paid leave. Unfortunately, definitions of ‘work of equal value’ 
are also lacking in the AGG, although the classification and evaluation of work is one of the 
main  obstacles  to  equal  pay.  For  a  definition  of  ‘work  of  equal  value’,  the  Federal  Labour 
Court, in its rare decisions on the topic, focuses on the requirements for work performance, 
but this is not beyond indirect discrimination itself.99  

The principle of equal pay is part of the gender equality principle in Article 3(2) and (3) 
of the German Constitution which binds the State, as an employer, as well as the parties to 
collective labour agreements. And there are several statutory provisions for the public and the 
private  sector  prohibiting  discrimination  with  regard  to  pay.  But  most  wages  and  job 
classification systems in Germany are determined by collective agreements under the Act on 
Collective Bargaining (Tarifvertragsgesetz) which contains no provisions on equal pay. Due 
to its understanding of the autonomy of collective bargaining (freedom of coalition) under the 

97   Co-determination refers to the right of workers to participate in the management of the companies for whom 

they work. For information on the amendments, see: http://www.bmfsfj.de/BMFSFJ/
gleichstellung,did=212316.html, accessed 8 January 2015. Little remains of the former ambition to establish a 
statutory 40 % minimum gender quotas for supervisory and executive boards within ten years. In 2014, 6 % of 
all executive board members were female. 

98   Federal Labour Court, judgment of 25 January 2012, 4 AZR 147/10; State Labour Court of Hamburg, 

judgment of 1 March 2011, 2 Sa 56/10.  

99   See Federal Labour Court, judgment of 19 April 2012, 6 AZR 578/10, on the incomparability of (female) 

secretarial services and (male) technical services within the armed forces.  

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German Constitution, the Federal Labour Court decided that the evaluation of work and the 
establishment of systems of pay are crucial parts of this autonomy and that the State must not 
interfere with these decisions of the social partners. Although most trade unions in Germany 
regard themselves as being bound by the principles of gender equality, including equal pay, 
collective agreements are still a major cause of the considerable gender pay gap, traditionally 
favouring  the  male  breadwinner  model  and  devaluing  ‘female’  professions  as  well  as  part-
time  work.  Even  collective  agreements  with  public  services  and  social  institutions  contain 
gender-discriminatory  classification 
Individual  claimants  proving  gender 
discrimination are entitled to an upward adjustment of their wages (‘Anpassung nach oben’), 
and any provisions of a working agreement that violate the prohibition of discrimination shall 
be  ineffective  under  Section 7(2)  of  the  AGG.  But  normally  courts  do  not  change  the 
underlying  collective  agreement  or  declare  the  agreement  or  its  discriminatory  provisions 
invalid – due to the freedom of collective bargaining.  

systems. 

The gender pay gap remains at 23 % in Germany, and this figure has not changed since 
1995.  The  main  obstacle  to  tackling  pay  discrimination  is  that  there  are  no  specific 
mechanisms to implement the principle of equal pay in practice. Although tackling the gender 
pay gap is one of the main topics on the agenda of the respective Ministry, no draft law100 has 
been presented yet.  

2.2. Access to work and working conditions 
Under  the  General  Equal  Treatment  Act  (AGG),  the  prohibition  of  discrimination  on  the 
grounds of sex/gender applies to access to work, working conditions, and promotion, both in 
individual and collective agreements, as well as to vocational training and to membership of, 
involvement  in,  and  the  benefits  of  employers’  and  employees’  organisations.  The  law  is 
applicable  to  all  employment  relationships  between  private  parties  and  to  employees  in  the 
civil service who do not enjoy the special status of civil servants. Dismissals are not covered 
by the AGG. Instead, they remain under the general laws on dismissal, which do not contain a 
prohibition  of  gender  discrimination.  Despite  the  clear  text  of  the  law,  the  Federal  Labour 
Court  interprets  the  AGG  as  covering  dismissals,101  but  one  of  the  four  main  criteria  for 
selecting the employees to be dismissed in the event of economic difficulties is still the length 
of  their  employment  by  the  employer  in  question.  It  is  therefore  unclear  whether  this 
interpretation will prevent indirect gender discrimination by dismissal.  

Under the AGG, differential treatment based on sex is permissible if the type of activity 
or its context require the employee to be a man (or woman). This requirement must pursue a 
legitimate  aim  and  must  be  proportionate.  German  law  reflects,  even  in  its  wording,  the 
permissible  exceptions  under  Directive  2006/54/EC.  German  courts  have  decided  that  the 
preference for appointing  female  equal  opportunity  commissioners  or even  the exclusion  of 
male  equal  opportunity  commissioners  may  be  justified  due  to  the  relevant  working 
requirements.  

For civil servants, special laws contain rules on gender equality and non-discrimination, 

and the AGG only applies insofar as there are any gaps. 

2.3. Occupational pension schemes 
Occupational  pension  schemes  are  covered  primarily  by  the  Act  on  Occupational  Pension 
Schemes  (Betriebsrentengesetz;  BetrAVG)102  and  additionally  by  the  AGG.  The  AGG  is 
applicable insofar as the BetrAVG, which applies to benefits for retirement, invalidity, or for 
surviving family members under occupational pension schemes set up by private employers, 
does not contain special precedent provisions. The BetrAVG does not contain a prohibition on 
gender discrimination, but gender discrimination with regard to occupational pension schemes 

100  However, see Documents of the Federal Parliament (Bundestags-Drucksache) 17/9781 of 23 May 2012, 

http://dip21.bundestag.de/dip21/btd/17/097/1709781.pdf, accessed 15 May 2013.  

101  Since Federal Labour Court, judgment of 6 November 2008, 2 AZR 523/07.  
102  Gesetz zur Verbesserung der betrieblichen Altersversorgung (Betriebsrentengesetz) of 19 December 1974, 

Official Journal (Bundesgesetzblatt BGBl), part I p. 3610.  

102  

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might be a question of ‘equal pay’ under the AGG.103 The Federal Labour Court considered 
entitlements  to  early  retirement  pensions  that  depended  on  the  formerly  different  (earlier) 
retirement ages of women  to be unlawful indirect discrimination.104 And following the case 
law  of  the  CJEU,  the  Federal  Labour  Court  developed  effective  protection  against  gender 
discrimination, and especially indirect discrimination of (mostly female) part-time workers. In 
particular, it held that the employer must not exclude part-time employees from occupational 
pension schemes, and it required the employer to conclude pension agreements that provide 
for  different  classes  of  workers  according  to  their  working  hours.105  The  Federal 
Constitutional  Court  considered  lower  pension  schemes  for  part-time  civil  servants  to  be 
indirect sex discrimination and incompatible with the constitution.106  

The law on occupational pension schemes does not make use of the exceptions permitted 
by Article 8 of the Recast Directive. The law no longer permits different retirement ages for 
men and women. But indirect sex discrimination remains a problem in practice. For example, 
the  Federal  Labour  Court  held  that  the  failure  to  take  periods  of  bringing  up  children  into 
consideration for the purpose of occupational pensions constitutes neither direct nor indirect 
discrimination on the grounds of sex and does not violate European or national constitutional 
law.107 The condition of a 15-year period of service for the same employer to be entitled to 
occupational pensions constitutes no indirect sex discrimination either.108 The Federal Labour 
Court  explicitly  rejects  the  addition  of  (interrupted)  periods  of  service  for  the  same 
employer.109 

3. Pregnancy and maternity protection, parental leave and adoption leave  

Going  beyond  the  European  directives,  the  Maternity  Protection  Act  (Mutterschutzgesetz; 
MuSchG)110 grants pregnant employees a right to a fully-paid leave of six weeks before, and 
eight  weeks  after  childbirth.  During  this  time,  they  also  remain  entitled  to  the  benefits  of 
health  insurance  schemes,  and  their  contributions  to  social  security  schemes  continue  to  be 
paid. During their pregnancy, employees may not perform work that is dangerous to their own 
health  or  to  that  of  the  unborn  child.  They  also  have  a  right  to  special  protection,  such  as 
breaks  or  the  possibility  to  sit  down.  Pregnant  women  must  not  be  dismissed  during  their 
pregnancy  and  four  months  after  childbirth.111  When  the  employee  herself  terminates  the 
contract with her employer during maternity leave and the contract is re-entered into within a 
year after confinement, the law presumes the labour relation uninterrupted with regard to the 
duration of the employment as a condition for benefits, premiums or promotion. There is no 
need  for  a  ‘right  to  return’  because  the  employment  relationship  remains  unaffected  by 
maternity  leave.  (For  example,  the  holiday  entitlement  is  completely  preserved.)  During 
maternity leave, employees are entitled to maternity allowances in the amount of their last net 
income. Maternity allowances are financed by sharing the costs between the statutory health 
insurance  and  all  employing  enterprises  in  a  complicated  contribution  procedure.  Paternity 

103  See Federal Labour Court, judgment of 11 December 2007, 3 AZR 249/06. The Court considered provisions 
that granted men a survivor’s pension only if the deceased wife had been the main provider of the family 
income to be discriminatory, following its judgment of 3 September 1989, 3 AZR 575/88.  

104  Federal Labour Court, judgment of 15 February 2011, 9 AZR 750/09.  
105  Federal Labour Court, judgments of 4 March 1989, 3 AZR 490/87; of 23 January 1990, 3 AZR 58/88; of 

20 November 1990, 3 AZR 613/89; and of 5 October 1993, 3 AZR 695/92.  

106  Federal Constitutional Court, judgment of 18 June 2008, 2 BvL 6/07.  
107  Federal Labour Court, judgment of 20 April 2010, 3 AZR 370/08.  
108  Federal Labour Court, judgment of 12 February 2013, 3 AZR 100/11.  
109  Confirmed by the Federal Labour Court, judgment of 9 October 2012, 3 AZR 477/10.  
110  Gesetz zum Schutz der erwerbstätigen Mutter (Mutterschutzgesetz) of 24 January 1952, Official Journal 

(Bundesgesetzblatt BGBl), part I p. 2318.  

111  Before, German courts confirmed the dismissal of pregnant workers when they did not reveal their pregnancy 
during their recruitment. It was not until 2003, that the Federal Labour Court, judgment of 6 February 2003, 
2 AZR 621/01, decided that questions concerning the possible pregnancy of a female candidate are unlawful.  

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leave is not granted under German law, but civil servants can apply for a day’s special leave 
on the occasion of their partner’s confinement.  

Parental  and  adoption  leave  is  provided  under  Sections 15-21  of  the  Federal  Law  on 
Parental  Allowance  and  Parental  Leave  (Bundeselterngeld-  und  Elternzeitgesetz;  BEEG).112 
Mothers and fathers are entitled to parental leave up to three years after birth or, in the case of 
an  (intended)  adoption  or  full-time  foster  care,  beginning  with  the  child’s  entry  into  the 
household. The parental leave can be taken by performing part-time work when employer and 
parent  agree  upon  the  conditions.  The  employee  is  entitled  to  the  employer’s  consent  to  a 
reduction of working hours when he or she has been working for an employer with more than 
15  employees  for  more  than  six  months,  unless  there  are  urgent  adverse  operational 
reasons.113 During parental leave, employees cannot be dismissed. The law on parental leave 
does  not  grant  a  right  to  return  to  the  same  or  a  comparable  job  or  to  benefit  from  any 
improvement of working conditions. 

The  law  on  parental  leave  goes  beyond  the  European  requirements  by  providing  for  a 
parental  allowance  for  parents  for  up  to  14  months,  provided  that  at  least  two  months  are 
taken by the other parent (normally the father). It amounts to 67 % of the average salary of 
that  parent  during  the  past  twelve  months,  but  cannot  exceed  EUR  1  800.  Parents  with  a 
salary of more than EUR 1 200 are only entitled to 65 % of the former salary. Parents with a 
salary of less than EUR 1 000 receive an increase which can bring their parental allowance up 
to 100 % of the former salary. Parental allowance may not be less than EUR 300. Since 2013, 
the  BEEG  provides  for  siblings’  bonuses  (10  %  of  the  parental  allowance  and  at  least 
EUR 75)  and  an  additional  allowance  of  EUR 300  per  child  in  case  of  multiple  births.  The 
parents  can  take  parental  leave  simultaneously  or  one  after  the  other,  but  simultaneous 
parental  leave  results  in  a  significantly  reduced  amount  of  the  allowance.  Surprisingly,  the 
Federal Social Court decided that the applicable regulations for calculating the amount neither 
violate the constitutional protection of the family, especially the free decision on the optimal 
division  of  labour  between  the  parents,  nor  the  principle  of  equality,  especially  gender 
equality.114 Since the BEEG was amended in 2012, female employees expecting another child 
can  terminate  their  parental  leave  to  switch  to  maternity  leave  with  clearly  better 
conditions.115 On 1 January 2015, further amendments of the BEEG entered into force. These 
amendments  extend  the  duration  of  the  entitlement  to  parental  allowances  of  parents  that 
work part-time, and thoroughly increase the flexibility of parental leave. The intention is to 
encourage  both  parents  to  work  part-time  during  parental  leave  and  to  share  family 
responsibilities and childcare duties more equally.116 

Employees are entitled to take time off work in the case of the sickness or accident of a 
family member. Exceeding European requirements, this right is also granted in the case of the 
death or marriage of a close family member or when the employee’s wife gives birth. In these 
cases, employees continue to be paid by their employer. 

4. Statutory schemes of social security  

Under the Social Codes, statutory social security schemes apply to all employees and persons 
in  vocational  training.  They  automatically  fall  under  these  schemes  (unemployment, 

112  Gesetz zum Elterngeld und zur Elternzeit (Bundeselterngeld- und Elternzeitgesetz, BEEG) of 5 December 

2006, Official Journal (Bundesgesetzblatt BGBl), part I p. 2748.  

113  The employer’s wish for the performance of certain tasks in full-time employment does not constitute an 
adverse operational reason, not even when the tasks of a leading position are in question: Federal Labour 
Court, judgment of 15 December 2009, 9 AZR 72/09.  

114  Federal Social Court, judgment of 15 December 2011, B 10 EG 1/11 R.  
115  This amendment was a consequence of the Kiiski and the Kücükdevici case, intensified by several German 
judgments emphasising that the former legislation constituted an infringement of European law, e.g. 
Administrative Court of Berlin, judgment 15 May 2012, 7 K 48/11; Administrative Court of Augsburg, 
judgment of 29 September 2011, Au 2 K 11/1018; Administrative Court of Gießen, judgment of 18 March 
2010, 5 K 1084/09.GI.  

116  See Official Journal (Bundesgesetzblatt BGBl) of 29 December 2014, part I at p. 2325. 

104  

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healthcare,  work  accidents,  retirement).  Going  beyond  the  Directive,  they  also  apply  to 
statutory care insurance. The contributions to these social security schemes are borne equally 
by  the  employee  and  employer  and  are  deducted  from  the  salary  before  payment  to  the 
employee.  

However,  according  to  Social  Code  No. IV  (Sozialgesetzbuch  IV),  so-called  mini-jobs 
with an income of up to EUR 450 are not subject to statutory social security but instead to tax 
advantages.  For  years,  experts  have  agreed  on  the  identification  of  mini-jobs  as  an  often 
involuntary  form  of  employment  and  a  poverty  trap,  especially  for  female  employees,  and 
therefore  on  the  recommendation  for  the  termination  of  their  present  promotion.117 
Since January  2013,  so-called  mini-jobs  are  subject  to  mandatory  pension  scheme 
contributions with the possibility of exemption. The mandatory pension scheme contributions 
are a fine idea insofar as every  year in a mini-job counts as a contribution year for pension 
schemes,  but  the  marginal contributions  cannot  build up  a  significant  amount  and  therefore 
fail to prevent poverty in old age.  

On  23 May  2014,  the  Federal  Parliament  adopted  a  law  on  statutory  pension  schemes 
covering  an  extension  of  the  recognition  of  childcare  periods  by  statutory  pension  schemes 
and professional insurance funds and introducing the option of an early entry into retirement 
at  the  age  of  63  without  deductions.  The  German  Women  Lawyers  Association  gravely 
criticises  the  option  of  early  retirement  due  to  its  gender  impact:  Its  requirements  are 
disproportionately met by well-paid male employees who did not interrupt their working life 
for childcare periods and cannot be met by employees in marginal or minor employment or 
employees who have taken childcare leave for longer periods – the overwhelming number of 
them being female.  

5. Self-employed persons  

Self-employed  persons  are  covered  by  the  AGG.  Consequently,  any  gender-based 
discrimination with respect to access to self-employed activities and promotion is prohibited. 
This provision is of little relevance as the chapter referred to gives a right of action against 
private  employers  who  discriminate,  and  hence  does  not  apply  to  the  situation  of  the  self-
employed.  The  provision  is  of  importance  only  insofar  as  it  grants  protection  against 
employers’ associations or professional organisations. Concerning working conditions or the 
discriminatory termination of self-employment contracts, the self-employed person may only 
invoke Section 19 of the AGG, which covers the protection against discrimination in the area 
of  civil  law.118  This  section  transposes  the  requirements  of  Directive  2004/113/EC. 
Unfortunately, the AGG restricts the notion of a good or service ‘available to the public’ to 
so-called  ‘mass  contracts’,  i.e.  contracts  which  are  typically  concluded  irrespective  of  the 
identity  of  the  other  contracting  party,  or  where  the  identity  of  that  person  is  of  little 
importance. In consequence, a self-employed person is only protected against discriminatory 
working  conditions  or  discriminatory  termination  of  his  or  her  contract  when  this  contract 
meets the requirements of Section 19 of the AGG, which is not the rule because the identity of 
the contracting parties regularly is of some importance. Self-employed persons can only enjoy 
the full protection of the AGG if they are in fact ‘quasi-subordinates’.119 

Directive  2010/41/EU  has  not  yet  been  implemented  into  German  law.  The  Federal 
Government  and the  Federal  Council  were  averse to its  contents  and  questioned  its need  as 

117  For example: A. Herzog-Stein et al. (eds.) Minijobs, WSI-Mitteilungen 1/2012, http://www.boeckler.de/
wsi_38633.htm; resolutions of the 68th Deutscher Juristentag 2010, p. 5, http://www.djt.de/fileadmin/
downloads/68/68_djt_beschluesse.pdf, both accessed 27 May 2013; R. Zimmer ‘Geringfügige Beschäftigung 
von Frauen – ein prekärer Zustand’ in: in: C. Hohmann-Dennhardt et al. (eds.) Geschlechtergerechtigkeit. 
Festschrift für Heide Pfarr pp. 296-310, Baden-Baden, Nomos 2010.  

118  G. Thüsing Arbeitsrechtlicher Diskriminierungsschutz, München 2007, paragraph 94, emphasises that the 

pursuit of self-employed activities or professions is only covered by Sections 19-21 of the AGG.  

119  See J.-H. Bauer et al. Allgemeines Gleichbehandlungsgesetz. Kommentar Section 2 Paragraph 16, München 

3rd ed., 2011.  

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well  as  the  competence  of  the  European  Union  concerning  social  security  law.120  Self-
employed persons (and freelancers) are not covered by the statutory social security systems 
and they cannot normally take part in occupational pension schemes. Self-employed persons 
can voluntarily become members of the statutory social security scheme (which is expensive) 
or  they  may  be  covered  by  Section 17(1)  of  the  BetrAVG121  under  rare  and  special 
circumstances. Normally, neither of these systems applies. Some self-employed persons have 
private insurance, but most self-employed persons as well as nearly all members of the liberal 
professions  are  covered  by  one  of  the  many  professional  pension  funds  (berufsständische 
Versorgungswerke) in Germany. Every liberal profession has its own pension fund in every 
German  state  which is  authorised  on the  legal  basis of  its  own  state  law.  Only  very  few  of 
these  many  special  laws  deal  with  questions  of  gender  equality.  A  major  problem  for 
members of the liberal professions is that child-raising periods are not taken into account by 
every professional pension fund.122  

Self-employed women are not covered by the Maternity Protection Act and are therefore 
not entitled to maternity protection and maternity allowances. In the opinion of the Ministry 
for  Family,  Seniors,  Women  and  Youth,  there  is  no  necessity  to  implement  Article 8  of 
Directive 2010/41/EU in national law,123 because self-employed women who are voluntarily 
insured under the statutory health insurance including sickness benefits – which many are not 
because  of  the  costs  involved –  are  entitled  to  maternity  allowances  in  the  amount  of  these 
sickness benefits (usually 70 % of their previous income). The Federal Constitutional Court 
decided that the unequal treatment between employees and self-employed women related to 
maternity allowances is compatible with the general principle of equality under the German 
Constitution.124  But  the  compatibility  with  European  law  is  more  than  doubtful.  Self-
employed  parents  are  not  entitled  to  parental  leave  because  there  is  no  employer  to  whom 
such  a  claim  can  be  addressed.  But  they  are  entitled  to  parental  allowances  on  the  same 
conditions as employees, although the more complicated calculation of the amount can place 
them at a disadvantage.  

6. Goods and services 

The AGG contains a prohibition on gender discrimination in relation to the provision of goods 
and services. But not every contract is covered by the applicable Section 19 of the AGG. First 
of all, the provisions of the AGG are restricted to contracts concluded under civil law. For the 
provision of goods and services under public law, the principle of equality contained in the 
German Constitution applies. This means that in this area harassment and sexual harassment 
are  not  considered  to  be  discrimination125  and  the  special  rules  on  support  by  anti-
discrimination organisations do not apply. Second, the AGG falls short of the requirements of 
Directive 2004/113/EC by containing several exceptions. Under Section 19(1)(1) of the AGG, 
the  application  is  restricted  to  so-called  ‘mass  contracts’  which  are  concluded  in  great 
numbers and typically irrespective of the identity of the other contracting party or where the 
identity is of small importance. Moreover, a landlord who rents out up to 50 apartments does 
not fall under the provision, and nor do contracts that will bring the parties into close spatial 
contact or into relationships of trust or with both parties being housed on the same piece of 
land  under  Section 19(5)  of  the  AGG.  Third,  in  violation  of  Directive  2004/113/EC,  the 

120  See Parliamentary Publication (Bundestags-Drucksache) 16/13830 of 20 July 2009, p. 149.  
121  Persons who are not employees can invoke the BetrAVG under Section 17(1) when they were guaranteed 

benefits for retirement, invalidity, or for surviving family members on the occasion or as a result of their self-
employed work for an enterprise. 

122  The Federal Constitutional Court, judgment of 5 April 2005, 1 BvR 774/02, decided that professional pension 
funds for lawyers have to offer non-contributory membership during child-raising periods for up to three years 
to meet the requirements of the gender equality principle under the German Constitution.  

123  See Parliamentary Publication 17/9615 p.53 et seq.  
124  Federal Constitutional Court, judgment of 3 April 1987, 1 BvR 1240/86.  
125  However, there is recent academic literature on the concept of sexual harassment as sex discrimination, 

prohibited by the Constitution: S. Baer Würde oder Gleichheit Baden-Baden 1995.  

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prohibition  of  sexual  harassment  under  Section 3(4)  of  the  AGG  is  restricted  to  the  area  of 
employment.126  

In  accordance  with  Directive  2004/113/EC,  Section 19  of  the  AGG  does  not  apply  to 
contracts under family or inheritance law. The law goes beyond the requirements of Directive 
2004/113/EC in  that it extends  protection against  gender  discrimination also  to  the  areas  of 
social  protection, including  social  security  and  health  services,  as  well  as  social  advantages 
and  education.  But  this  extension is  not exercised  in practice and  moreover, the  prohibition 
only extends to such services provided under civil law.  

Under the AGG, differential treatment based on sex is permitted in the provision of goods 
and services if there is an objective reason. This formulation is wider than the one permitted 
under the Directive, which requires a legitimate aim and the proportionality of the measure. 
According  to  academic  writing,  these  restrictions  must  be  read  into  the  German  law. 
Examples  of  ‘objective  reasons’  given  in the  AGG  are  the  prevention  of  danger  or  harm  to 
others, the need to protect privacy or personal security, or the granting of special advantages 
where there is no interest in enforcing equal treatment. For the latter reason, the provision of a 
service in a sex-segregated way is considered permissible by legal commentators, as long as 
both men and women receive it to the same extent. An objective reason could be the desire of 
women to exercise at a fitness centre free of male observation and possible harassment.  

Section 19  of  the  AGG  covers  all  private-law  insurances.  In  the  light  of  Article 14  of 
Directive 2004/113/EC, the Higher Regional Court of Hamm awarded compensations in the 
amount  of  EUR 2  000  for  non-pecuniary  harm  suffered  by  the  applicant  whose  health 
insurance was terminated due to her alleged concealing of pregnancy complications.127 More 
difficult to understand is a decision of the District Court of Hannover rejecting the application 
for  compensation  by  a  female  pregnant  applicant  whose  application  for  membership  in  a 
private health insurance would only be accepted on the condition that benefits for pregnancy 
and  childbirth  were  excluded.128  The  compatibility  of  this  decision  with  Section 20(2)(2) of 
the AGG and the sex equality directives is at least questionable. In March 2011, the Court of 
Justice  of  the  European  Union  declared  sex-segregated  insurance  rates  invalid  as  from 
21 December  2012.  On  9 April  2013,  amendments  to  the  SEPA-accompanying  Act  (SEPA-
Begleitgesetz) entered into force to implement this Test-Achats ruling. The insurance industry 
had held on to 21 December 2012 as the final date. Private insurance companies in Germany 
had  broadly  published  very  questionable129  advertisements  for  cheaper  insurances  before 
21 December  2012,  especially  aiming  at  male  customers.  It  is  obvious  that  afterwards 
insurance rates were increased for both sexes and thus the only winner from unisex rating are 
the companies themselves. 

7. Enforcement and compliance aspects  

The  AGG  prohibits  victimisation  in  labour  relationships  and  gives  the  victim  of 
discrimination or any person who supported him/her a right of action against the employer. 
This rule also applies to the discrimination of civil servants. 

In civil and labour cases, there is a shift of the burden of proof: If the claimant proves 
facts  permitting  the  conclusion  that  there  was  discrimination,  the  defendant  has  to  submit 
evidence to the contrary. The decision will be taken to the disadvantage of the party whose set 
of  facts  cannot  be  corroborated  by  the  court.  However,  the  lack  of  a  right  of  access  to  the 

126  According to the prevailing opinion of legal commentaries, this restriction is not applicable in the civil service 

and has to be eliminated for the provision of goods and services by directive-consistent interpretation. 

127  Higher Regional Court of Hamm, judgment of 12 January 2011, 20 U 102/10, I-20 U 102/10.  
128  District Court of Hannover, judgment of 26 August 2008, 534 C 5012/08.  
129  Some used slogans such as ‘Now men can get angry! Men’s sales: Why you should act now!’ (‘Da kann Mann 
sauer werden! Männerschlussverkauf: Warum Sie jetzt handeln sollten!’) or ‘Change before unisex rates 
apply!’ (‘Wechseln Sie, bevor die Unisex-Tarife kommen!) or ‘Men, do you really want gender equality?’ 
(‘Männer, wollt ihr wirklich Gleichberechtigung?’) or unnerved their customers with countdown clocks and 
questions such as whether their insurance policies were ‘unisex safe’ (‘Unisex-sicher’).  

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employer’s  files  or  an  employer’s  obligation  to  publish  employees’  salaries  and  fringe 
benefits  in  practice  undermines  the  rules  on  the  burden  of  proof.  Moreover,  the  Federal 
Labour Court has clearly restricted the usability of statistical data as prima facie evidence.130  
The  AGG  provides  for  a  right  to  damages  to  compensate  for  discrimination.  The 
remedies  and  sanctions  for  breaching  the  prohibition  of  gender  discrimination  differ 
according  to  the  field  of  law.  In  labour  and  civil  cases,  the  victim  has  a  right  to  pecuniary 
compensation, but not to reinstatement or the fulfilment of the denied contract. However, in 
both cases, the perpetrator of the discrimination can exonerate himself/herself by showing that 
he/she  did  not  act  negligently  or  intentionally.  This  requirement  of  fault  is  not  compatible 
with the case law of the CJEU with respect to labour law. In labour cases the victim of gender 
discrimination  has  a  right  to  moral  damages  even  if  he/she  would  not  have  received  the 
benefit  in  question  (especially  hiring  or  promotion)  in  a  discrimination-free  procedure.  The 
damages  amount  to  a  maximum  of  three  months’  salary  and  can  be  deemed  dissuasive, 
especially  because  they  are  to  be  paid  to  every  victim  that  brought  a  case.  In  the  case  of 
discrimination  caused  by  collective  agreements,  the  employer  is  responsible  only  if  he/she 
acted  with  gross  negligence  or  intentionally  under  Section 15(3)  of  the  AGG.  The 
compatibility of this provision with the European directives is more than doubtful.131 In civil-
law cases, the victim can also bring a claim for the cessation of the discrimination and non-
repetition. 

In  the  employment  relationships  of  civil  servants,  all  claimants  have  the  right  to  a 
discrimination-free repetition of the (hiring or promotion) procedure, and there is even a right 
of  the  best  candidate  to  be  chosen under  the  Constitution. The  effectiveness  of  this  remedy 
depends  on  the  authority  informing  the  victim  of  discrimination  of  its  decision  before  the 
other  candidate  is  appointed  to  the  post.  Otherwise,  the  victim  can  merely  claim 
compensation. Criminal sanctions and administrative fines are not available in cases of gender 
discrimination. 

Access  to  the  courts  is  ensured  for  individuals  who  claim  to  have  been  the  victim  of 
gender  discrimination.  Anti-discrimination  interest  organisations  do  not  have  standing  in 
court,  but  may  only  support  individual  claimants.  This  means  that  the  realisation  of  gender 
equality through the courts remains exclusively in the hands of individual claimants. In cases 
of  discrimination  within  the  context  of  employment  and  access  to  goods  and  services 
provided under civil law, labour courts and civil courts (the ‘ordinary courts’) are competent. 
In  some  of  the  German  states,  actions  concerning  discrimination  in  access  to  goods  and 
services  cannot  be  brought  to  court  before  the  failure  of  a  prior  mediation  procedure. 
Administrative  courts  are competent  to  decide  claims  against  a  public  authority,  both  when 
the  case  is  brought  by  a  civil  servant  for  alleged  gender  discrimination  and  when  gender 
discrimination  in  the  provision  of  public  services  is  asserted.  Claimants  have  a  right  to 
(financial) legal aid for court and lawyer’s fees if, by superficial examination, their case has 
good  chances  of  success.  In  civil  and  labour  cases,  the  claim  has  to  be  brought  within  two 
months132; in administrative and social-law cases, the time period is one month.  

Since  2006,  there  is  a  general  anti-discrimination  authority  on  the  federal  level 
(Antidiskriminierungsstelle  des  Bundes).  Its  powers  extend  to  all  grounds  of  discrimination 
contained  in  the  European  anti-discrimination  directives.  Its  tasks  are  to  inform  individuals 
claiming  to  have  been  discriminated  against  and  the  general  public  of  the  legal  means 
available  in  case  of  discrimination.  Moreover,  the  authority  shall  conduct  studies  on 
discrimination  and  shall  propose  measures  to  prevent  discrimination.  The  authority  has  no 

130  Federal Labour Court, judgment of 22 July 2010, 8 AZR 1012/08, overruling State Labour Court of Berlin and 

Brandenburg, judgment of 26 November 2008, 15 Sa 517/08.  

131  Labour Court of Cologne, judgment of 28 November 2013, 15 Ca 3879/13, restricted its application to cases of 

indirect discrimination and association-level collective agreements.  

132  The Federal Labour Court, judgment of 21 June 2012, 8 AZR 188/11, decided that in labour-law cases, the 

two-month period does not violate the principles of equivalence and effectiveness.  

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power  to  support  individuals  in  anti-discrimination  suits,  and  cannot  impose  any  fines  for 
discrimination. On the level of the states (Länder), only very few comparable bodies exist.133 
Although  the  social  partners  are  aware  of  their  responsibility  to  prevent  and  abolish 
gender discrimination in collective agreements, they have not yet undertaken any systematic 
assessment. The legislator is reluctant to impose specific obligations on the social partners in 
this  respect,  pointing  to  its  obligation  to  respect  their  freedom  of  coalition  under  the 
Constitution.  Yet,  legislation  obliging  the  social  partners  to  live  up  to  their  responsibility 
would be constitutional as it would merely emphasise their obligations flowing from EU law. 
Collective agreements play an important role in German labour law, but vary to a great 
extent.  Most  collective  agreements  are  concluded  at  the  level  of  the  states.  Collective 
agreements  contain  rules  on  the  contents,  conclusion,  and  dissolution  of  employment 
contracts. These rules are binding and directly applicable between an employer and employee 
if both are members of the social partners that concluded the agreement. Currently, there are 
68 000 collective agreements in Germany, 506 of which have been declared to be generally 
applicable  by  the  Ministry  of  Labour  and  Social  Affairs.  However,  the  Ministry  neither 
publishes  these  agreements  nor  makes  them  accessible  in  any  other  way.134  The  social 
partners do not consider collective agreements as a particular effective means to implement 
EU  gender  equality  law.  Critics  argue  that  the  reason  for  this  is  that  women  are  under-
represented in these organisations. 

8. Overall assessment  

Overall,  Germany’s  implementation  of  EU  gender  equality  law  is  satisfactory  on  the 
legislative level. Although in some respects legislation goes beyond the requirements of the 
directives (e.g. scope of application, maternity protection, parental allowances), in other fields 
there are some disturbing gaps of implementation, such as the exclusion of dismissals from 
the scope of application of the General Equal Treatment Act, the resistance to implementing 
Directive 2010/41/EU, the restriction of access to court and of legal protection in relation to 
the provision of goods and services to so-called ‘mass contracts’, thus limiting the protection 
of self-employed persons as well, and the restriction of the prohibition of sexual harassment 
to the area of employment. European Law requires unequivocal transposition of directives.  
  Moreover, although courts and legal practitioners are aware of EU law, the case law of 
the  CJEU,  and the  obligation  to  interpret  national  law  in  the  light  thereof,  many  provisions 
lack  implementation  in  practice.  Some  of  the  main  obstacles  are  the  lack  of  a  definition  of 
‘work  of  equal  value’,  the  lack  of  access  to  employers’  files  and  remuneration  data,  the 
overemphasis  on  the  freedom  of  coalition  for  the  social  partners  and  their  collective 
agreements,  the  necessity  of  fault  in  labour-law  cases  and  the  problems  when  dealing  with 
questions of indirect sex/gender discrimination.  

GREECE – Sophia Koukoulis-Spiliotopoulos 

1. Implementation of central concepts 

The  Acts  transposing  the  Gender  Equality  Directives  2006/54/EC  (Employment  and 
Occupation  (Recast)),  2004/113/EC  (Goods  and  Services)  and  2010/41/EU  (Self-Employed 
Persons) copy the definitions of direct and indirect discrimination from these directives.  

133  For example, the antidiscrimination authorities of Berlin (http://www.berlin.de/lb/ads/) and Schleswig-Holstein 

(http://www.landtag.ltsh.de/beauftragte/ad/index.html), and the anti-discrimination office for Saxony 
(http://www.adb-sachsen.de/), all accessed 27 May 2013.  

134  See Ministry of Labour and Social Affairs, http://www.bmas.de/SharedDocs/Downloads/DE/PDF-Publika
tionen-DinA4/arbeitsrecht-verzeichnis-allgemeinverbindlicher-tarifvertraege.pdf?__blob=publicationFile, 
April 2013, p. 5, accessed 27 May 2013.  

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  With regards to positive action, Article 4(2) of the Constitution (Const.) (‘Greek men and 
women  have  equal  rights  and  obligations’)  requires  the  promotion  of  gender  equality.135 
Article 116(2) Const. is more explicit than EU law (‘Positive measures aiming at promoting 
equality  between  men  and  women  do  not  constitute  discrimination  on  grounds  of  sex.  The 
State  shall  take  measures  to  eliminate  inequalities  existing  in  practice,  in  particular  those 
detrimental to women’). It requires that the legislature and all other state authorities take the 
positive  measures  that  are  necessary  and  pertinent  for  promoting  gender  equality  in  all 
areas.136 

The Act transposing the Recast Directivestipulates (as the Directive does) that instruction 
to  discriminate  on  grounds  of  sex  constitutes  sex  discrimination.  The  Act  transposing 
Directive  2004/113  uses  the  wider  term  ‘encouragement’  and  the  Act  transposing  Directive 
2010/41 uses both terms. Therefore, both Acts exceed the Directives. 

The Acts transposing Directives 2006/54, 2004/113 and 2010/41 copy the definitions of 

harassment and sexual harassment from the Directives. 

The law is satisfactory in all cases, but the notions of indirect gender discrimination and 

instruction or encouragement to discriminate have not yet been applied. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The  Act  transposing  the  Recast  Directive  copies  the  definition  of  ‘pay’  from  the  Directive. 
While  discrimination  against  women  is  widespread,  equal  pay  litigation  is  scarce.  Older 
judgments  of  the  Supreme  Civil  Court  (SCC)  dealt  with  a  family  allowance  paid  by  the 
employer at a percentage of the basic salary to all male workers who were married and had 
children, without any further condition, but regarding which female workers were subjected to 
two conditions: that their husband was unable to maintain himself due to invalidity or illness, 
and  that  the  children  be  maintained  by  the  mother.  The  SCC  held  that  this  allowance 
constituted  ‘pay’,  since  it  was  paid  in  respect  of  the  employment  relationship.  Therefore, 
women should receive it on the same conditions as men. It relied on the constitutional equal 
pay  norm  (see  below)  in  light  of,  and  in  conjunction  with,  ILO  Convention  No.  100  and 
Article  119  TEC  (now  Article  157  TFEU)  as  interpreted  by  CJEU  case  law.137  It  therefore 
reversed  its  previous  case  law  which  had  not  found  any  discrimination  in  this  respect  as  it 
applied the breadwinner concept. 

Article 22(1)(b) Const. requires, since 1975, equal pay for work of ‘equal value’, without 
distinction on any ground, including sex. This provision exceeds EU law which only concerns 
sex  discrimination.  The  equal  pay  principle,  as  enshrined  in  Article  157  TFEU,  has  been 
included, since 1984, in the Act transposing the Equal Pay Directive (75/117/EEC) and is also 
included  in  the  Act  transposing  the  Recast  Directive.  The  last-mentioned  Act  also  requires 
that discrimination on grounds of sex or family status be excluded and that equal treatment be 
applied in ‘professional’ classification and ‘personnel’ evaluation systems. The term ‘job’ in 
both  cases  would  make  it  clearer  that  it  is  the  nature  of  the  job  that  matters  and  would 
promote  awareness  of  the  equal  value  notion,  which  remains  a  dead  letter,  while  the 
traditional, non-transparent job classification in collective agreements (CAs) and other wage-
fixing instruments is unchanged, making indirect gender discrimination very likely. 

There  is  no  case  law  relying  on  the  Act  transposing  Directive  2002/73  or  the  Act 
transposing the Recast Directive. Most judgments do not concern gender discrimination; they 
apply the wider constitutional rule of equal pay, usually to the same work, performed under 
the  same  conditions.  Differences  in  the  legal  nature  of  the  employment  relationship  of  the 
workers compared (e.g. one worker is under a private-law contract, the other is a civil servant) 
or the wage-fixing instrument (e.g. one worker is covered by a CA, the other is not, or they 

135  Council of State (CS) (Supreme Administrative Court) 1933/1998 (Plen.). 
136  CS 2832-2833/2003, 192/2004. 
137  SCC 3/1995 (Plen.) mentioned in CJEU Case 187/98 Commission v Greece [1999] ECR I-7713. 

110  

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are covered by different CAs) are often used to justify pay differences, even in the same firm 
or service and for the same work.138 This shows unawareness of what the equal value notion 
means.  

2.2. Access to work and working conditions 
Article 4(2) Const. exceeds EU gender equality law; it covers all sectors and fields. Τhe Act 
transposing the Recast Directive applies (as the Directive does) to the private and the public 
sector; to any field and relationship or form of employment or performance of services and 
any vocational training. It covers access to all levels of employment and professional training; 
working conditions, including dismissal, and membership of and involvement in workers’ or 
employers’ professional organisations, including benefits that they provide. Case law has only 
dealt with subordinate employment and public posts (see below).  

Article 4(2) Const. can be invoked against the State, public bodies and private parties. It 
refers to ‘Greek men and women’, but Article 116(2) Const. refers to ‘men and women’. The 
constitutional gender equality rule must therefore be considered to also cover foreigners. The 
Act transposing the Recast Directive makes no distinction as to nationality. Therefore, in light 
of the Constitution and human rights treaties, gender equality law must be considered to cover 
Greeks and all foreigners, even non-EU citizens. There is no case law on this issue.  

Article 116(2) Const. allowed ‘derogations’ from gender equality. In 2001, by virtue of a 
constitutional  revision,  its  content  was  replaced  by  the  requirement  of  positive  action.  This 
was the result of a big NGO campaign and case law holding that Article 4(2) Const. requires 
substantive  equality.  This  is  why  the  Acts  transposing  Directives  2002/73  and  the  Recast 
Directive allowed no derogations; this is consistent with EU law, since derogations are a mere 
option and Member States may enact more favourable provisions.  

Case law had condemned gender discrimination in access to employment in the private 
and  the  public  sector139  relying  on  Article  4(2)  Const.,  Directive  76/207  and  the  Act 
transposing  it.  After  the  constitutional  revision,  maximum  quotas  for  access  of  women  to 
military and police academies and military or semi-military corps were repealed, but there is 
still potentially indirect discrimination. For example, until 1999, there were maximum quotas 
for access of women to police academies; the minimum height requirement was 1.70 m. for 
men and 1.65 m. for women. As the quotas were repealed, the minimum height for women 
was raised to 1.70 m. The Council of State (CS) accepted that the average height of men is 
higher than that of women, but it held that the requirement did not breach the Constitution or 
Directive  76/207,  because  justified  by  reasons  of  public  interest  related  to  police  duties.140 
This ‘mere generalisation’ cannot exclude indirect discrimination, according to the CJEU. In a 
recent similar case where the claimant requested a preliminary reference to the CJEU, a CS 
section referred the matter to a larger section to assess the need for a reference.141There is no 
case law relying on the Act transposing the Recast Directive; a few judgments rely on the Act 
transposing  Directive  2002/73.  An  example  is  an  Athens  Administrative  Court  of  Appeal 
(ACA) judgment on the minimum height for access to posts of professional soldiers, which 
was lower for women than men. The ACA considered this a positive measure.142 
  Many women are in flexible and precarious forms of employment (fixed-term, part-time, 
temporary,  seasonal).  The  ΙLΟ  Committee  on  the  Application  of  Conventions  and 
recommendations  (CEACR),  responding  to  complaints  by  the  Greek  General  Confederation 
of Labour (GSEE), and the Ombudsman stress that, due to the crisis and austerity measures, 
‘many enterprises replaced stable work with precarious work; the percentage of women who 
took  such  flexible  work  as  newly  recruited  or  already  in  employment  increased,thereby 

138  SCC 3/1997 (Plen.), 288/2003, 453/2002. 
139  SCC 1360/1992 (private banks); CS 1917/1998 (Plen.) (Police Academies).  
140  CS 1247/2008, 2367 and 2369/2010. See S. Koukoulis-Spiliotopoulos ‘Greece’ EGELR 1-2009 pp. 60-63. 
141  CS 18/2014. 
142  Athens ACA 14/2011. 

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making gender-based discrimination more visible’. In the public sector, where women are the 
vast majority, measures aimed at reducing employment greatly affect them.143 

2.3. Occupational pension schemes 
The notion of ‘occupational scheme’ was virtually unknown until 2009, in spite of two Greek 
CJEU  cases.144  This  was  mainly  because  a  decree  transposing  the  relevant  directive  merely 
copied it, without indicating which Greek schemes are occupational or providing any criteria 
for spotting them. Therefore, the CJEU requirements of clarity and transparency had not been 
complied with. In 2009, the CJEU found Greece to be in breach of Article 157 TFEU, due to 
gender discrimination in ages and other conditions for civil servants’ pensions.145 

In July 2010, in a sweeping social security reform, pensionable ages were raised for men 
and  women,  in  all  schemes:  they  should  reach  65  in  the  public  sector  by  2013  and  in  the 
private  sector  by  2015;  the  contributory  periods  increased.  The  calculation  of  the  pension 
amount must be based on the entire working life (until then, it was based, in the private sector, 
on the best five years out of the last ten years of employment, and in the public sector, on the 
last  month  or  the  last  five  years).  These  measures,  which  were  meant  to  cope  with  the 
financial crisis rather than implement EU gender equality law, were introduced in an abrupt 
and inflexible way with very short transition periods, and penalised women who often have a 
shorter and/or irregular working life due to family responsibilities. They were, moreover, not 
accompanied by measures facilitating reconciliation of family and work or dealing with acute 
problems in law and in practice affecting the right of parents to reconcile family and work.146 
Shortly  after,  an  Act  transposing  the  Recast  Directive  copied  its  provisions  on occupational 
schemes without referring to the reform and fixed different transition periods, creating further 
uncertainty. Therefore, the transposition is not satisfactory.  

In November 2012, pensionable ages for men and women were abruptly raised to 67, in 
all pension schemes, entering into effect on 1 January 2013. This meant, for many women, a 
further  increase  to  their  pensionable  age  of  at  least  two  years  or  more,  depending  on  the 
length  of  employment,  with  no  transition  period,  in  breach  of  the  principle  of  legal 
certainty.147 So, the number of women who will in practice be able to receive a pension will 
be much smaller than before, due to the specificities of their working lives as exacerbated by 
their  far  higher  unemployment  rate.  Moreover,  the  continuous  and  growing  pension  cuts, 
since  2010,have  been  sharper  for  pensioners  under  55;  they  therefore  have  a  strong  gender 
dimension, as an ILO Mission to Greece underlined ,as the most seriously affected pensioners 
are mothers of minor children who in the past were entitled to an earlier pension.148 

Case law usually ignores the distinction between statutory and occupational schemes; it 
relies on Article 4(2) Const. The only case addressing the occupational character of a scheme 
was  Evrenopoulos.149  The  Athens  ACA  asked  the  CJEU  whether  a  scheme  covering  the 
personnel  of  a  public  corporation  (the  State  Electricity  Company  (DEI))  was  occupational, 
and  if  so,  whether  a  provision  which  granted  a  survivors’  pension  to  widowers  subject  to 
conditions not applying to widows, conflicted with Article 119 TEC (now 157 TFEU). The 
CJEU held that the scheme was occupational; therefore, Article 119 precluded the application 
of that provision. Consequently, the ACA upheld the applicant’s right to a widower’s pension. 
Some judgments pre-dating the CJEU 2009 judgment (see above) held that the civil servants’ 
scheme fell within the scope of Directive 79/7/EEC, but they upheld the rights of men to an 

143  CEACR Observations adopted 2012, published 102nd ILC Session (2013), Convention No. 111: 

http://www.ilo.org/dyn/normlex/en/f?p=1000:11003:0::NO; Greek Ombudsman Annual Report 2012: 
http://www.synigoros.gr, both accessed 25 May 2014. 

144  C-147/95 DEI v Evrenopoulos [1997] ECR I-2057; C-457/98 Commission v Greece [2000] ECR I-11481. 
145  C-559/07 Commission v Greece [2009] ECR I-47. 
146  See proposals by the Greek League for Women’s Rights endorsed by 30 NGOs: http://www.league

womenrights.gr, accessed 30 May 2014. 

147  Cf. CJEU Case 286/12, Commission v Hungary, judgment of 6 November 2012. 
148  ΙLO, Report on the High Level Mission to Greece (Athens, 19-23 September 2011), para.321:  

http://www.ilo.org/global/standards/WCMS_170433/lang--en/index.htm, accessed 28 May 2014. 

149  Case C-147/95 DimossiaEpicheirissi Ilektrismou (DEI) v. EfthimiosEvrenenopoulos [1997] ECR I-2057. 

112  

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earlier  pension  under  the  conditions  applying  to  women,  on  the  basis  of  Article  4(2) 
Const.150Mothers  employed  on  a  private-law  contract  or  having  an  independent  profession, 
who are insured under any social security scheme, except the farmers’ scheme, are entitled to 
a  service/pension  credit;  if  the  mother  makes  no  use  of  this,  the  father  can  benefit  from  it. 
Such an entitlement is provided for civil servants who are parents, irrespective of sex.  

3. Pregnancy and maternity protection, parental leave and adoption leave 

There is no general regime regarding maternity and parenthood protection. Rules in the public 
and the private sector vary; they are scattered, complex and frequently modified.  
  Maternity  leave  in  the  private  sector  is  seventeen  weeks;  wages  are  supplemented  by 
social security benefits. The conditions for granting the benefits (200 working days in the last 
two years before childbirth) are stricter than those for granting sickness benefits (100 working 
days in the last year before the sickness), which is in breach of Directive 92/85/EEC. A recent 
statutory provision151 abolished ordiminished several social security contributions(mostly paid 
by employers) and the corresponding benefits. This affects, inter alia, maternity benefits. 

It  is  prohibited  to  refuse  to  hire  on  grounds  of  pregnancy  or  maternity  and  to  dismiss 
during  pregnancy,  eighteen  months  after  childbirth,  or  during  a  longer  absence  due  to 
pregnancy-related sickness; except on a serious ground (reduced output due to pregnancy is 
no such ground). This ground must be invoked and proved by the employer, and the dismissal 
must  be  reasoned,  in  writing,  and  be  notified  to  the  woman  and  the  labour  inspectorate; 
otherwise it is null and void. The woman does not have to disclose her situation, except where 
this  is  needed  for  the  employer  to  take  ‘positive  measures’  (e.g.  for  health  and  safety, 
maternity  leave).  Maternity  leave  is  working  time  for  all  purposes.  Women  are  entitled  to 
return to the same or an equivalent post on not less favourable conditions and to benefit from 
any  improvement  in  working  conditions  that  they  would  obtain  during  their  absence.  Less 
favourable treatment on grounds of pregnancy or maternity is prohibited. This is satisfactory 
implementation. 

In the  public sector, maternity leave is five months, paid. A three-month paid adoption 
leave is granted to female civil servants who adopt a child under the age of six. The above 
protection  applies,  along  with  constitutional  guarantees  of  civil  servants’  permanence.  So, 
Directive 92/85/EEC is exceeded as to length of leave, pay and protection against dismissal. 
Women employed by the State, local authorities and other legal persons governed by public 
law under a contract of indefinite duration receive the above leave. However, those working 
for the same employers under a fixed-term contract receive the less favourable private-sector 
maternity leave, and when they lack 200 days of service (see above), they are deprived of any 
income for most of the leave, which is in breach of Directives 92/85/EEC and 2006/54/EC. 

The law,  except  for  the  disadvantages  regarding  social  security  benefits and  fixed-term 
employment,  is  satisfactory  and  Greek  courts  have  traditionally  favoured  maternity 
protection.  For  example,  prior  to  the  transposition  of  Directive  2002/73  and  the  Recast 
Directive, the SCC, relying on the Act transposing Directive 76/207, Article 4(2) Const. and 
Article 141(1) TEC (now Article 157 TFEU), held that a prejudicial modification of working 
conditions  after  maternity  leave  constituted  discrimination  on  grounds  of  sex.152  However, 
some  recent  judgments  are  incompatible  with  EU  law.  It  has  been  held,  for  example,  that 
maternity protection does not extend beyond the expiry of a fixed-term contract, the employer 
not being obliged to renew it; and that a woman was not entitled to a voluntary pay rise given 
during her maternity leave to all her colleagues performing the same work.153 In practice, as 
the  CEACR  and  the  Ombudsman  deplore  (see  2.2.  above),  mainly  in  the  private  sector 
‘women  are  exposed  to  indecent  conditions  of  work,  especially  during  pregnancy  and  after 

150  See e.g. Court of Audit 44/2009 (Plen.). 
151  Article First, paragraph IA, subparagraph IA3, ofAct 4254/2014, OJ A 85 of 7 April 2014, p. 1427. 
152  SCC 37/2004. 
153  SCC 1341/2005, 317/2011 (fixed term) and 1221/2004 (pay rise). 

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childbirth’  and  ‘discrimination  related  to  pregnancy  and  childcare  leave  was  the  most 
prominent  form  of  discrimination’.  In  particular,  after  maternity  leave,  downgrading  or 
flexible  forms  of  employment  are  imposed  on  women  (in  particular  part-time  or  rotation 
work) and dismissals are frequent.  
  With  regard  to  parental  leave,  the  Act  transposing  Directive  2010/18/EU  covers  all 
natural,  adoptive  and  foster  parents  working  in  the  private  and  public  sector,  in  any 
relationship or form of work, including part-time, fixed-term and temporary work. It excludes 
transfer  of  parental  leave  to  the  other  parent.  It  sets  minimum  standards  not  affecting  more 
favourable  rules,  but  as  it  did  not  specifically  repeal  conflicting  provisions  and  there  is  no 
case law yet, there is legal uncertainty. In our opinion, the legal situation is as follows:  

In  both  the  public  and  private  sectors,  both  parents  previously  had  after  one  year  of 
employment  with  the  same  employer,  an  individual  non-transferable  right  to  a  three-and-a-
half months’ unpaid leave, after maternity leave, for each child up to the age of three and a 
half. The transposing Act raised the leave to four months and the child’s age to six. In case of 
more children, one year of employment must elapse between the leaves. The leave is working 
time, but social security coverage is only maintained if the worker pays his/her contributions 
and those of the employer, something that seems incompatible with EU law. Very few women 
and  almost  no  men  take  this  leave,  due  to  the  loss  of  earnings  and  to  the  reluctance  of 
employers to grant it. Parents who have a child via surrogacy are entitled to the same parental 
leave as natural parents. There are no provisions or case law regarding multiple births in the 
private sector. 

In addition, mothers, and subsidiarily fathers in the private sector, were entitled to a paid 
working-day  reduction  for  thirty  months  after  maternity  leave.  This  was  recently  made  an 
autonomous  right  for  fathers,  even  when  the  mother  is  self-employed.  Alternatively,  a  paid 
leave of equivalent length may be agreed with the employer. The employer’s refusal to grant 
this leave may constitute an abuse of a right,154 but such agreements seem rare. Mothers are 
granted an additional six-month leave, paid through social security benefits at the rate of the 
legal minimum wage. Parents of handicapped children are entitled toan unpaid working-day 
reduction. Leaves and working-day reductions are working time for all purposes. 

In the public sector, under the Civil Servants Code (CSC) both parents additionally had a 
transferable  nine-month  paid  leave  after  maternity  leave,  until  the  child  reached  the  age  of 
four, as an alternative to a reduced working day. The Act transposing the Directive increased 
the child’s age to six. Therefore, the Directive is exceeded regarding the length of the leave 
and  pay;  moreover,  there  is  no  previous  service  requirement.  In  practice,  the  longer 
transferable leave is still granted in the public sector, as it results from circulars of competent 
ministries.155  

However, there are no individual rights for each parent, as the Directive requires. A male 
civil  servant  whose  wife  did  not  work  was  denied  this  leave  and  the  reduced  working  day, 
unless his wife was seriously ill or handicapped. This provision was recently deleted from the 
CSC, but, regarding judges and some other categories of civil servants (such as the armed and 
security  forces),  it  was  maintained.  Civil  servants,  whose  spouse  is  a  private-sector  worker, 
are only granted the reduced working day or leave to the extent that it exceeds their spouse’s 
rights. The entitlement of male and female judges to the CSC nine-month leave, which was 
upheld by case law,156 was curtailed by four months on the occasion of its formal extension to 
fathers, in breach of the Directive.157 Following a CS judgment which found this contrary to 

154  SCC (Plen.) judgment No. 10/2010. 
155  See e.g. Ministry of Education Circular Φ.351.5/43/57822/Δ1/05.05.2014, which purports to clarify the 

parental leave regime applying to state school teachers, in accordance with the Civil Servants Code, following 
the transposition of Directive 2010/18, paragraph D4, p. 9, available at: 
http://www.mpratis.gr/014/ad050514.pdf, accessed 15 January 2015. 

156  See leading cases CS (Plen.) 3216/2003; CS 1 and 2/2006. 
157  See Greek National Commission for Human Rights (NCHR) Comments on the bill ‘fair trial and its 

reasonable length’: www.nchr.gr, accessed 20 May 2014. 

114  

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the Constitution, Articles 20 and 24 of the EU Charter of Fundamental Rights and Directive 
2010/18/EU,158 the judges were again granted the nine-month paid leave by law. 

There  is  an  irrational  and  unlawful  practice  in  the  civil  service  when  the  leave  is 
requested not upon expiry of the maternity leave, but later; or if the child was born before the 
parent was appointed to the civil service. Although the child is still under the prescribed age 
and the parent made no use of the reduced working day (as an alternative to the nine-month 
leave),  a  ‘fictitious  use’  of  the  reduced  working  day  is  taken  into  account,  the  leave  being 
proportionately  curtailed.  The  Legal  Council  of  State159  agreed  with  this  practice,  which 
breaches  Directive  2010/18/EU,  the  Act  transposing  it  and  the  Act  transposing  the  Recast 
Directive, which prohibit any less favourable treatment on the grounds of an application for or 
the  taking  of  parental  leave.  This  practice  is  continuing,  as  it  is  shown  by  circulars  of 
competent ministries.160  

Responding  to  a  preliminary  reference  of  the  Thessaloniki  ACA,  the  CJEU  held  that 
Directive 96/34 does not require two periods of parental leave for twins. However, ‘it obliges 
the national legislature to establish a regime which, according to the situation in the Member 
State concerned, ensures that parents of twins receive treatment that takes due account of their 
needs.  It  is  up  to  nationalcourts  to  determine  whether  national  rules  meet  that  requirement 
and,  if  necessary,  to  interpret  them,  insofar  as  possible,  in  conformity  with  [EU]  law’.  As 
neither the parental leave regime nor the childcare structures met the above requirement, the 
ACA  upheld  the  claim  for  a  second  parental  leave.161  Subsequently,  the  CSC  granted  an 
additional paid six-month leave for each child beyond the first in case of multiple births.  

Decisions  of  the Minister of  Education  exclude  maternity  and  parental leave  time  from 
the period required for teachers to apply for the posts of school director and school counsel. 
The CS annulled such a decision following recourse by the League for Women’s Rights.162 

In  the  private  sector,  both  parents  have  a  transferable  right  to  unpaid  time  off  for  an 
illness  of  a  dependent  child  or  other  family  member,  which  is  working  time.  This  is 
satisfactory implementation of the Directive, but it does not apply in the public sector. In the 
private and the public sector parentsof a child under the age of 16 have a transferable right to 
time off for school visits (paid). The Act transposing the Directive provides for parents in the 
private and the public sector an individual right to a ‘special leave’ for a child under the age 
of 18 who suffers from cancer or needs blood transfusion or dialysis or a transplant (paid) or 
is hospitalised due to a serious disease or accident (unpaid); in the latter case the exhaustion 
of the parental leave is required; this is unlawful, as the purposes of the special leave and the 
parental  leave  differ.  The  CSC  also  grants  a  transferable  right  to  a  paid  ‘special  leave’  to 
employees  with  a  spouse  or  child  suffering  from  a  disease  which  requires  regular  blood 
transfusion or periodic hospitalisation, or a child suffering from a serious mental handicap or 
Down  syndrome,  with  no  further  condition.  Therefore,  the  CSC  prevails  regarding  time-off 

158  CS 3590 and 3591/2013 (Plen.) On these judgments see European Network of Legal Experts in the Field of 
Gender Equality, S. Koukoulis-Spiliotopoulos ‘Greece’ in: European Gender Equality Law Review 1/2014, 
available at: http://ec.europa.eu/justice/gender-equality/files/law_reviews/egelr_2014_1_final_web_en.pdf, 
accessed 28 August 2014. 

159  Opinion 64/2008. The Legal Council of State gives opinions at the request of public authorities which are not 

binding, unless the competent Minister endorses them, which was the case with this opinion. 

160  See e.g. Ministry of Education Circular Φ.351.5/43/57822/Δ1/05.05.2014, which purports to clarify the 
parental leave regime applying to state school teachers under the Civil Servants Code, following the 
transposition of Directive 2010/18, paragraph D4, p. 9, available at: http://www.mpratis.gr/014/ad050514.pdf. 
This circular refers to Minister of Home Affairs Circular ΔΙΔΑΔ/Φ.51/590/οικ.14346/29.05.2008, p. 5. The 
latter, which is accessible at: http://www.poeota.gr/_download/14346-2008.pdf, states that it complies with the 
above mentioned Legal Council of the State Opinion 64/2008, Both circulars accessed 15 January 2015. 
161  Case C-149/10 Zoe ChatzivIpourgosIkonomikon (Minister of Finance) [2010] ECR I-8489; ACA 1842/ 2010; 

see S. Koukoulis-Spiliotopoulos ‘Greece’ EGELR 1-2011: http://ec.europa.eu/justice/gender-equality/
document/index_en.htm, accessed 30 May 2014. 

162  CS 4875/2012; see European Network of Legal Experts in the Field of Gender Equality, S. Koukoulis-

Spiliotopoulos ‘Greece’ in: European Gender Equality Law Review1-2013, available at: 
http://ec.europa.eu/justice/gender-equality/files/law_reviews/egelr_2013-1_final_web_en.pdf, accessed 
28 August 2014. 

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for  a  spouse  and  the  absence  of  any  condition.  Time-off  and  special  leaves  are  working 
periods for all purposes. Most of the above provisions exceed the Directive. 

The Act transposing the Directive prohibits a dismissal and any less favourable treatment 
due to an application for or the taking of parental leave or time-off or a special leave; this also 
applies  where  EU  law  is  exceeded.  The  CJEU  also  condemns  adverse  treatment  related  to 
leaves  exceeding  minimum  EU-law  requirements.163  Legislation  predating  the  above  Act 
prohibits  any  direct  or  indirect  discrimination  against  workers  with  family  responsibilities 
(dependent  children  or  other  family  members)  regarding  access  to  and  the  maintenance  of 
employment  or  professional  development.  The  rights  after  maternity  leave  (see  above)  also 
apply after parental leave.  

4. Statutory schemes of social security 

Both legislation and case law deal with all schemes in the same way, without distinguishing 
between statutory and occupational, and allow no exceptions (see 2.3. above).  

5. Self-employed persons 

The Act transposing Directive 2010/41 stipulates that it applies to self-employed workers and 
their spouses or life partners. However, it provides, in breach of the Directive, that only self-
employed  women  (not  spouses  or  life  partners)  may  be  granted  a  maternity  allowance 
allowing a temporary interruption of their activity due to pregnancy or maternity for at least 
fourteen weeks. The source, the amount and the procedure for paying this allowance shall be 
set  out  by  common  decision  of  the  competent  Ministers,  which  has  not  yet  been  issued. 
Therefore, the implementation is unsatisfactory. There are no exceptions in social security.  

There is also indirect discrimination against women. Social security coverage of family 
workers (employer’s spouse, children and other close relatives) starts and ends on the day of 
notification of the commencement or termination of employment; otherwise, the worker is not 
covered, even if contributions are paid.This is an exception to the general rule that coverage 
starts automatically upon commencement of work. This mostly affects women, who are the 
majority of family workers. Moreover, the income of a spouse derived from an undertaking 
owned  by  the  other  spouse  is added  to  the latter’s  income,  making  income  tax higher. This 
also  affects  mostly  women,  who  are  usually  the  ones  working  for  their  spouses.  In  all  the 
above cases, this also creates a disincentive for women’s economic activity. 

6. Goods and services 

The Act transposing Directive 2004/113 has the same scope as the Directive. Following the 
CJEU’s Test-Achats judgment,164 the exceptions allowed by this Act were abolished. 

7. Enforcement and compliance aspects 

Women rarely complain for fear of losing their job and/or being labelled troublemakers, and 
due  to  lack  of  evidence.  The  prohibition  of  victimisation  cannot  ease  their  fears,  which  are 
growing  along  with  their  sharply  rising  unemployment.  According  to  data  of  the  Hellenic 
Statistical Authority (ELSTAT), from March 2009 to March 2014, the official unemployment 
rate rose from 9.2% to 26.8% . The male unemployment rate rose from 6.6% to 23.8 %, the 
female  unemployment  rate  from  12.7%  to  30.6  %.  Unemployment  in  the  15-24  age  group 
rose  from  25.1 %  to  58.3 %;  for  the  25-34  age  group  from  12.1 %  to  35.5 %.165Long-term 

163  See e.g. CJEU Case C-284/02 Sass [2004] ECR I-11143 (maternity leave longer than 14 weeks).  
164  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

165  ELSTAT Press release 5 June 2014 forMarch 2014: http://www.statistics.gr, accessed 5 June 2014. 

116  

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unemployment  (over  12  months)  is  72 %  of  total  unemployment,166  the  long-term  rate  for 
women  being  generally  higher,  and  even  higher  in  the  30-44  age  groups,  which  are  more 
likely  to  have  young  children.167An  unemployment  allowance  is  paid  to  the  unemployed 
registered  with  the  Manpower  Employment  Organisation  (OAED),  whose  figure  for 
unemployment  is currently lower than those reported by Elstat (993 118 v.1.274 843). This is 
paid for a maximum of twelve months and it is subject to increasingly strict conditions; about 
9  %  of  the  registered  unemployed  received  it  in  April  2014.168  Its  amount  is  EUR  360  per 
month, plus EUR 36 for each dependent child; and the long-term unemployed may receive a 
personal  allowance  of  EUR  200  per  month  for  another  twelve  months,  subject  to  a  strict 
means test. These amounts are well below the poverty threshold, which according to Eurostat 
is EUR 580 for Greece.169 

The rule on the standing of organisations to engage in litigation, which could help, is not 
applied as it has not been incorporated into the procedural codes. The author is only aware of 
one  NGO  having  recourse  (see  3  above).  The  same  is  true  for  the  burden  of  proof  rule;170 
there  was  a  preliminary  reference  to  the  CJEU,  which  does  not  seem  to  have  had  any 
impact.171 

There are, moreover, barriers to justice, as litigation costs are sharply rising, proceedings 
are  too  long  (the  ECtHR  has  issued  a  pilot  judgment  against  Greece)172  and  legal  aid  is 
inadequate and subject to very strict conditions. The Greek National Commission for Human 
Rights (NCHR),173 the CEACR and the Ombudsman (2.2. above) deplore this situation.  

Remedies  and  sanctions  are  proportional  and  dissuasive.  An  unlawful  dismissal  is 
declared null and void (by civil courts) or annulled (by administrative courts); the dismissal is 
deemed never to have occurred; the worker retains his/her post; reinstatement is not needed. 
An unlawful refusal to hire or promote is declared null and void by the civil courts and the 
hiring or promotion is deemed to exist from the time it should have occurred. Administrative 
courts annul such a refusal and order retroactive hiring or promotion. Full back pay plus legal 
interest  is  always  awarded,  and  possibly  moral  damages.  There  are  also  criminal  sanctions, 
administrative  fines,  and  disciplinary  sanctions  for  civil  servants.  However,  women  rarely 
have  recourse  to  justice  (see  above)  while  the  number  of  complaints  submitted  to  the 
Ombudsman is increasing.  

The  Ombudsman,  whose  independence  is  constitutionally  guaranteed,  is  the  equality 
body. A deputy Ombudsman deals with gender equality. In the area of goods and services, the 
Ombudsman deals with the public sector; the Consumers’ Ombudsman deals with the private 
sector. Ombudsmen receive complaints, intervene between the parties attempting to achieve a 
solution that ensures the rights of the complainant, and give non-binding opinions. 

Collective agreements (CAs) have often improved maternity and parenthood protection. 
Since  2010,  the  CA  system  has  gradually  been  dismantled  through  repeated  and  extensive 
statutory  interventions  in  free  and  voluntary  collective  bargaining;  the  CA  hierarchy  was 
reversed, so that enterprise-level CAs (where women’s bargaining power is weaker) prevail 
over  sectoral  CAs.  National  general  collective  agreements  (NGCAs),  a  safety  net  of  last 
resort, were annihilated, as minimum wages throughout the country – their main object – were 
first  reduced  by  statute  (by  32  %  for  workers  below  the  age  of  25  and  22  %  for  all  other 

166  ELSTAT, Unemployed 15+ (length of unemployment) (first quarter 1998–fourth quarter2013): 
http://www.statistics.gr/portal/page/portal/ESYE/PAGE-themes?p_param=A0101&r_param=
SJO01&y_param=TS&mytabs=0, Table 06, accessed 1 June 2014. 

167  Direct information from ELSTAT. 
168  OAED, available at: http://www.oaed.gr./images/statistika/aprilios2014/ekthesiaprilioy2014.pdf, accessed 

30 May 2014. 

169  European Committee of Social Rights 23.5.2012 GΕΝΟP-DEI and ADEDY v Greece Complaint No. 66/2011, 
available at: http://www.coe.int/t/dghl/monitoring/socialcharter/complaints/complaints_EN.asp?, accessed 
28 May 2014. 

170  NCHR Comments on the Bill implementing Directive 2006/54: http://www.nchr.gr, accessed 28 May 2013. 
171  Case C-196/02 NikoloudivOrganismos TilepikoinonionEllados (OTE) [2005] ΕCR Ι-1789. 
172  ECtHRAthanasiou v Greece, 21 December 2010 (final since 21 March 2011). 
173  NCHR Comments on the bill ‘fair trial and its reasonable length’: http://www.nchr.gr, accessed 1 June 2013. 

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workers) and then replaced by statutory wages of the thus reduced amount. New NGCAs only 
concern  non-wage  matters  and  do  not  have  a  national  scope;  they  only  bind  the  signatory 
employers’  and  workers’  federations  and  their  members.  Following  GSEE  complaints,  the 
CEACR and the ILO Committee on Freedom of Association (CFA), strongly deplored these 
state  interventions.174  Enterprise-level  CAs,  mostly  reducing  wages  to  the  above  statutory 
levels, are sharply rising (from 238 in 2010 to 976 in 2012).175 

8. Overall assessment  

The implementation of EU law on the access to and conditions of work is rather satisfactory. 
However, certain discriminatory provisions remain on the books, while certain notions, such 
as  equal  value  and  indirect  discrimination,  are  not  applied,  due  to  insufficient  legal  criteria 
and a lack of sensitisation. Measures for maternity protection and reconciliation of family and 
work exceed EU law in certain respects. However, there is still discrimination in legislation 
and in practice. Consecutive social security reforms make the prospects for women to obtain 
an  old-age  pension  increasingly  bleaker.  Remedies  and  sanctions  are  very  effective,  but 
seldom applied, as women, in particular in the current socio-economic context, are reluctant 
to complain. Incorporating the rules on the burden of proof and the standing of organisations 
into the procedural codes would help.  

In  compliance  with  an  EU/IMF  assistance programme,  wages,  pensions, social benefits 
and services are decreasing; employment is deregulated; essential safety nets, including CAs, 
are abolished or neutralised; while taxes and other charges are increasing. This is achieved by 
an avalanche of long and tortuous pieces of legislation, dealing with subjects unrelated to one 
another  (‘omnibus  laws’),  often  with  retroactive  effect,  difficult  to  combine  amongst 
themselves  and  with  other  legislation  and  constantly  and  unpredictably  modified.  In  this 
context  of  general  insecurity,  unemployment,  in  particular  of  women  and  young  people,  is 
soaring  and  gender  stereotypes  are  reinforced.  Indeed,  the  crisis  and  the  austerity  measures 
have a ‘disproportionate impact on women’, as strongly deplored by the ILO CEACR, which 
also calls for a rapid ‘reverse engineering of austerity’.176 

HUNGARY – Beáta Nacsa 

1. Implementation of central concepts 

The new Fundamental Law, which replaces the previous Constitution and came into force on 
25 April 2011, declares that ‘Women and men shall have equal rights.’ This legislative target 
is intended to be reached by the uniform ‘Equality Act’ (Act CXXV of 2003) in which sex 
and  sex-related  grounds  are  just  one  among  the  20  grounds  of  legally  prohibited 
discrimination, which even includes a general clause of ‘any other status’. Consequently the 
prohibited  grounds  are  much  wider  than  what  is  required  by  in  the  EU  acquis,  although  in 

174  CEACR Observations adopted 2012, published 102nd ILC Session (2013), Conventions 98 (right to organise 

and collective bargaining) and 100 (equal pay):http://www.ilo.org/dyn/normlex/en/f?p=
1000:11003:0::NO;CFA 365th Report, Governing Body 316th Session, 1-16 November 2012, Case 2820 
(Conventions 87 (freedom of association) and 98 (right to organise and collective bargaining): 
http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/
wcms_193260.pdf, both accessed 25 May 2014.  

175  Ch. Ioannou and K. Papadimitriou Collective bargaining in Greece in 2011 and 2012 April 2013, available at: 
http://www.omed.gr/el/index.php?module=seminars&action=  downloadfile&myid=16;  Labour  Institute  of 
GSEE  (INE/GSEE)  Annual  Report  2013  pp.  30,  192,  311-312,  available  at:  http://www.inegsee.gr,  both 
accessed 1 June 2014. 

176  CEACR  Observations  adopted  2012, published  102nd  ILC  Session  (2013),  Conventions 100  and  111  (equal 
pay, discrimination): http://www.ilo.org/dyn/normlex/en/f?p=1000:11003:0::NO, accessed 25 May 2014. 

118  

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such  legislation  the  issue  of  sex  discrimination  is  less  emphatic,  and  the  transposition  of 
gender equality directives is less rigorous, than it could be in a separate law.177  

The  Equality  Act  defines  the  basic  concepts  of  equality  law  (direct  and  indirect 
discrimination, harassment, unlawful segregation, victimisation and instruction to commit any 
of the above forms of unlawful treatment), which are to be applied in the entire legal system. 
The Hungarian concepts go beyond the relevant EU regulations as much as the definitions of 
direct  and  indirect  discrimination  and  unlawful  segregation  protect  groups  (and  not  only 
individuals)  against  unequal  treatment.  This  difference  had  some  impact  on  jurisdiction  in 
case of unlawful segregation of Roma children in schools, but not in gender equality case law.  
All central concepts are rather similar to those of in Directive 2006/54/EC, although the 
Hungarian  definitions  are  usually  more  limited.  The  definition  of  direct  discrimination  is 
narrower  because  it  allows  the  possibility  of  exemption  due  to  the  enforcement  of  another 
person’s  fundamental  right,  if  it  is  suitable  for  the  designated  purpose  and  proportional,  or 
otherwise  has  a  reasonable  and  objective  explanation  directly  related  to  the  relationship.178 
Similar  exemptions  are  allowed  in  the  Directive  only  in  relation  to  indirect  discrimination. 
The  concept  of indirect  discrimination  is  also  narrower  because  of  stipulating  ‘considerably 
larger disadvantage’ compared to ‘disadvantage’ as mentioned in the Directive. The definition 
of  harassment  is  identical  to  that  in  the  Directive,  although  sexual  harassment  as  such  is 
missing  from  the  Equality  Act.  This  omission  was  intended  to  be  eliminated  by  the 
modification of the Equality Act in 2006, which inserted into the definition of harassment that 
the  violation  of  dignity  of  the  person  occurs  as  a  result  of  a  conduct  ‘of  sexual  or  other 
nature’.  Consequently,  the  content  of  sexual  harassment  must  be  developed  through  the 
jurisdiction of ETA and the courts. Up to now the case law of ETA has properly transposed 
the  content  of  sexual  harassment  written  in  the  Directive:  the  ETA  imposed  a  fine  for 
habitually  making  remarks  about  the  attractive  appearance  of  a  female  co-worker,  using  a 
very intimate tone (calling her ‘puppy’ or ‘piglet’), repeatedly offering himself as her sexual 
partner publicly.179 Instruction to discriminate is properly transposed into the Equality Act. 

Positive action is mentioned in the fourth modification of the Fundamental Law, stating 
that  ‘equal  opportunities  and  social  convergence  shall  be  promoted  by  introducing  special 
measures’. The rules of such measures are regulated by Article 11 of the Equality Act, stating 
that positive action might be issued by Act, by Government decree based on the Act, or by 
collective  agreement;  and  that  it  must  not  violate  fundamental  rights,  it  must  not  grant 
unconditional  preference  and  it  must  not exclude  the  consideration  of  individual  aspects.  In 
regard  of  gender  inequalities,  no  positive  action  has  been  ordered  by  law  in  Hungary  yet, 
beyond the (questionable) specific pension entitlements of women after 40 years of service.  

The  idea  of  establishing  a  quota  system  for  political  elections  has  met  strong  rejection 
from  political  parties  (with  the  exception  of  LMP  (Lehet  Más  A  Politika:  Politics  Can  Be 
Different), despite the fact that women’s participation in elected bodies is extremely low in 
Hungary.180  The new  parliamentary  elections  held in  2014  resulted in  a  9.5 %  participation 
rate  for  women.  The  ruling  FIDESZ-KDNP  permanent  party  alliance  (Fiatal  Demokraták 
Szövetsége  –  Kereszténydemokrata  Néppárt:  Alliance  of  Young  Democrats  –  Christian 
Democratic  People’s  Party)  has  the  lowest  participation  rate:  out  of  133  MPs  only  9  are 
women,  which  equals  6.7 %.181  According  to  the  announcement  of  the  re-elected  Prime 
Minister, the new Government will have only male members.  

177  Consequently the number of sex or sex-related cases is rather low (in 2012, 53 cases; 17 %) compared to all 
cases adjudicated by the Equal Treatment Authority (further on: ETA), which is the main administrative 
executor of equality legislation, http://www.egyenlobanasmod.hu/data/2012report.pdf accessed 19 September 
2013. For the year 2013 no comparable data had been published until 1 July 2014.  

178  Article 7(2) of the Equality Act. 
179  365/2011 EBH. 
180  The participation of women in politics is marginal: the ratio of women in Parliament is 9 %, and in 

municipalities it ranges from 5-19 %. Central Statistical Office, Women and Men in Hungary 2009-2010, 
Budapest 2011, pp. 216-17. 

181  The author’s calculations on the basis of data published by the National Election Office 
http://www.valasztas.hu/hu/ogyv2014/858/858_0_index.html, accessed 29 May 2014. 

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2. Equal pay and equal treatment at work 

Issues of equal pay and equal treatment at work are regulated by both the Equality Act and 
Act No. I. of 2012 on the Labour Code (further on: LC). 

2.1. Equal pay 
The previous Constitution expressly guaranteed equal pay for equal work, which is no longer 
included in the new Fundamental Law. Still, the specific rules on equal pay in the new Labour 
Code remained almost identical to those in the previous Code and properly transpose relevant 
EU  law.  The  concept  of  ‘pay’  covers  all  direct  or  indirect  payments,  whether  in  cash  or  in 
kind, provided to the worker on the basis of employment. For the purposes of equal pay, the 
equal value of work is determined on the basis of the nature of the work performed, its quality 
and  quantity,  working  conditions,  the  required  vocational  training,  physical  or  intellectual 
efforts,  experience,  responsibilities  and  labour  market  conditions.182  The  latter  criterion, 
which  was  inserted  into  the  paragraph  by  the  new  Code,  according  to  the  intentions  of 
drafters,  opens  up  the  possibility  for  nationwide  employers  to  provide  different  wages  in 
different parts of the country, although it might lead to different interpretations as well. The 
Equality  Act  expressly  prohibits  exemptions  in  regard  of  direct  sex  discrimination  cases  in 
pay. Although rules prohibiting wage discrimination seem to be in place, the gender wage gap 
is  still  rather  considerable  in  Hungary,  especially  among  university/college  graduates  and 
managerial employees.183  
  Wages paid on the basis of performance or job classification should also be provided in 
compliance with the principle of equal pay. Job classification is established either by law in 
the  public  sector  or  by  (usually  company  level)  collective  agreements  in  the  private  sector. 
While  such  job  classification  systems  do  reduce  wage  differences  in  the  private  sector, 
especially among workers with lower wages,184 they do not have a similar effect in the public 
sector because the acts establishing wage scales allow considerable deviation from the wage 
payable on the basis of the wage scale. According to the Act on public servants, the director 
of the state administrative organ may increase the basic wage of the public servant by 50 %, 
or may reduce it by 20 %.185 The wage adjustment is linked to the result of the evaluation of 
performance  or  quality  of  work  done  in  the  previous  year,  although  no  detailed  regulations 
exist in this regard. Although equal pay rules are applicable to public servants, the possibility 
of wage adjustment may result in a gender-based wage gap in the public sector.186  

In case law, when attempting to justify wage differences, employers usually refer to their 
freedom  of  contract,  and/or  the  differences  in  the  bargaining  power  of  different  employees. 
This happened in a case in which female storekeepers earned 70-100 % less than their male 
colleagues.187  Such  a  classical  example  of  gender  discrimination  in  pay  is  rather  rare  in 

182  Article 12(3) of the LC. 
183  In 2010, the ratio of women holding a university/college degree was only 71 % of that of the comparable men, 
while the same ratio in case of simple work was 96 %. See Central Statistical Office, Women and Men in 
Hungary 2009-2010, Budapest 2011, p. 167.  

184  L. Neumann Van-e munkaerõ-piaci hatása a decentralizált kollektív alkunak Magyarországon? (Does 

decentralised collective bargaining have any effect in the labour market?) Közgazdasági Szemle, May 2001 
pp.409–429. 

185  Article 133(3) of Act CXCIX of 2011 on public servants 
186  According to a recent study based on microeconomic data, 8 % of the gender wage gap in the public sector 

does not result from any observed factor e.g. education, segregation, etc, so might be the resulted of unlawful 
wage discrimination (but also from unobserved personal features of public servants: e.g. decision-making 
capacity). A. Lovász Jobbak a nők esélyei a közszférában? A női-férfi bérkülönbség és a foglalkozási 
szegregáció vizsgálata a köz- és magánszférában (Do women have better opportunities in the public sector? 
The gender wage gap and occupational segregation in the public and the private sector) Budapest Working 
Papers on the Labour Market BWP – 2013/2, Centre for Economic and Regional Studies, Hungarian Academy 
of Sciences, Budapest, Hungary. 

187  http://www.egyenlobanasmod.hu/jogesetek/en/117-2010-en.pdf, accessed 19 September 2013. The decision of 

ETA was confirmed by the Supreme Court in published decision No. KGD 2013/5. 

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Hungarian  case  law.  It  is  much  more  frequent  that  the  employer  arbitrarily  provides  better 
wage conditions for some individuals or some groups of workers.188  

2.2. Access to work and working conditions 
The  regulations  of  the  Equality  Act  provide  protection  against  any  direct  and  indirect 
discrimination  listed  in  the  Recast  Directive189  in  relation  to  access  to  work  and  working 
conditions.  The  Equality  Act  gives  a  more  detailed  list  of  terms  and  conditions  related  to 
which  the  rules  of  equal  treatment  must  be  followed  (including  e.g.  compensatory  and 
disciplinary responsibility).  

On the other hand, however, the exceptions regulated by Article 22 of the Equality Act 
go somewhat further than the Recast Directive and offer the employer some leeway not only 
in the cases listed in Article 14 (access to employment, including the training leading to it) but 
also regarding any other terms and conditions of employment. Furthermore, in Hungarian law 
the need to differentiate between the sexes should only be ‘substantial and legitimate’ instead 
of ‘determining’ as is stipulated by the Directive.  

All elements taken together, the Hungarian Act provides weaker protection to women by 
making  the  differentiation  between  workers  justifiable  by  the  employer  with  a  much  wider 
scope  than  is  provided  by  the  Recast  Directive.  The  wider  margin  for  sex-based 
differentiation  under  Hungarian  law  may  be  illustrated  by  the  decision of the  ETA  where a 
lower-rank clerical job requiring some physical work (sometimes lifting weights of ten kilos) 
was qualified as being ‘preferably for males’, on this ground rejecting a female applicant.190 

2.3. Occupational pension schemes 
Hungary established the legal framework for occupational pension schemes by Act CXVII of 
2007. Since early 2011, only one investment company provided occupational pension services 
for employers, which was a combination of an HR instrument through which key personnel 
and management can be rewarded and attached more closely to the company, and a company 
instrument  providing  savings  for  old  age.  Terms  and  conditions  are  to  be  decided  by  the 
employer within the framework of the investment company’s manual. The more selective the 
terms and conditions of the scheme as set up by the employer are, the more likely it is that 
some  gender-related  indirect  discrimination  might  occur,  because  men  are  significantly 
overrepresented in managerial and key positions in Hungary.  It will take years before some 
case law may develop in this regard. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Traditionally Hungarian labour law provided pregnant women and mothers of small children 
with a wide range of strong entitlements (far beyond the acquis), safeguarded by effective and 
dissuasive  sanctions.  The  strong  labour  protection  has  been  criticised  as  hindering  the 
employment prospects of women. Labour economists especially have flogged the three-year 
(parental) leave, arguing that spending such a long period out of work considerably reduces 
the chances of re-entering the labour market.  

Despite  the  criticism,  the  three-year  parental  leave  has  been  maintained  by  the  recent 
Government, although the related legal protection of parents has been considerably reduced in 
the new Labour Code, which came into force in 2012.  

The  major  change  in  the  latter  regard  was  that  only  pregnant  women  who  notify  the 
employer  of  their  pregnancy  were  entitled  to  legal  protection  against  dismissal.  The 
Constitutional Court, however, nullified the legal provision requesting prior notification about 

188  For example, in one case, some groups of nurses working in different departments of the same hospital were 

entitled to work hazard bonuses, while other groups of nurses were not, despite working under identical or very 
similar conditions. Kúria, Kfv. III. 39 148/2011. Published: EBH 2011/2424 (in the end the employer stopped 
paying the hazard bonus for all its nurses, and therefore the claimants’ reference point.ceased to exist).  

189  Directive 2006/54/EC OJ L 204/23 of 5 July 2006.   
190  ETA Decision no. 441/2008. 

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121 

 
 
 
 
 
 
 
 
                                                      
pregnancy in order to enjoy legal protection against dismissal, therefore the rule again applies 
that the status itself and not its notification activates the legal protection. 191  

The  new  Labour  Code  is  still  rather  generous  in  regard  of  short-term  and  long-term 
leaves,  which  are  provided  for  both  natural  and  adoptive  parents.  Short-term  leaves  are 
granted for the period of receiving IVF treatment in a healthcare institution; for the duration 
of mandatory pregnancy-related medical examinations; and for nursing the child until the end 
of the ninth month for one or two hours daily (in case of one child and twins).  

As far as long-term leaves are concerned, mothers (both natural and adoptive) are entitled 
to twenty-four weeks of maternity leave, for which period pregnancy-confinement benefit is 
paid,  the  amount  of  which  is  equal  to  70  %  of  the  average  daily  pay  (with  no  ceiling  on 
payments). 

Following the end of maternity leave, both parents are entitled to unpaid leave until the 
child  reaches  the  age  of  three  (or  the  age  of  ten,  in  case  of  permanently  and  seriously  ill 
children).  For the  period  of  this  leave,  two types  of parental  benefits  are  provided  from  the 
central  budget:  childcare  benefit  and  childcare fee.  Both  are  family  entitlements,  except  for 
the childcare fee until the child reaches the age of one, which is provided only for (insured) 
mothers.  The  benefit  is  a  flat-rate  amount,  equal  to  the  amount  of  the  minimum  old-age 
pension,  and  is  paid  until  the  child  reaches  the  age  of  three.  The  childcare  fee  is  paid  to 
insured  parents  only,  from  the  end  of  the  maternity  leave  until  the  child  reaches  the  age  of 
two. Young parents are entitled to the childcare fee if they give birth during or shortly after 
attending  college  and/or  university.  The  amount  of  it  is  equal  to  70  %  of  average  daily 
earnings, with a ceiling of twice 70 % of the minimum daily wage.  

Following the expiry of any of the aforementioned leaves, under the new Labour Code 
(LC), the employer is no longer expressly obliged to re-employ the employee. The content of 
the regulations are rather vague and ambiguous, and it raises the possibility of a violation of 
Clause  5  of  Directive  2010/18/EU.  Article  65(3)  of  the  LC  prohibits  the  dismissal  of  an 
employee who is on maternity or parental leave. If the employer violates this obligation, the 
employee may claim his/her reinstatement into his/her original job, according to Article 83 of 
the LC. Furthermore, according to Article 59, upon the employee’s return from maternity and 
parental leave the employer has to make an offer to the employee about the modification of 
his/her wage, adjusted by the amount of the average annual wage increase for employees in 
the same position. In the absence of such employees, the rate of actual annual wage increases 
implemented by the employer applies.  

According  to  the  recent  regulations,  legal  protection  is  granted  while  the  parent  is  on 
leave until the child reaches the age of three.192 If the mother or the single father  returns to 
work before the child reaches the age of three, instead of protection, restriction on dismissal 
will apply. The form of such restriction varies according to the actual reason for dismissal. If 
the reason for dismissal is related to the employee’s behaviour, it must be so serious that it 
could serve as basis for dismissal with immediate effect. If the reason for dismissal is related 
to either the capabilities of the employee or the operation of the employer, the employee could 
be  dismissed  only  if  there  is  no  vacancy  at  the  employer’s  relevant  premises  which 
corresponds  to  the  capabilities,  practice  and  qualification  used  by  the  employee  in  his/her 
current position.193  

191  The procedure at the Constitutional Court was initiated by the Commissioner for Fundamental Rights, claiming 
that the obligation of notification about early pregnancy generally (without any particular legal reason) violates 
pregnant women’s human dignity and their right to privacy: 17/2014. (V. 30.) Constitutional Court Decision on 
the nullification of the phrase of ‘prior to dismissal’ in Article 65.(5) of Act I of 2012 on the Labour Code 
(17/2014. (V. 30.) AB határozat a munka törvénykönyvéről szóló 2012. évi I.törvény 65. § (5) bekezdése „a 
felmondás közlését megelőzően” szövegrésze alaptörvény-ellenességének megállapításáról és 
megsemmisítéséről). Decisions of the Constitutional Court and the Official Journal of the Constitutional Court; 
available online: http://www.mkab.hu/letoltesek/abk_2014_17_alairt.pdf, accessed 5 June 2014. 

192  If both parents take unpaid leave, only the mother is entitled to legal protection against dismissal. If a single 

father takes the leave, he – like the mother – is also covered by protection against dismissal. 

193  Article 66(4) of the Labour Code. 

122  

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If  the  employer  unlawfully  dismisses  a  pregnant  woman,  or  the  protected  parent  of  a 
child under the age of three on childcare leave in violation of the rules on dismissal protection 
(prohibition  on  dismissal),  the  employee  is  entitled  to  reinstatement  into  her/his  previous 
work, while (s)he is also entitled to any lost wages.  

The aforementioned legal protection covers neither the extremely widely defined circle of 
executive employees (either male or female), nor employees employed through a ‘simplified 
employment  relationship’.  The  regulation  on  simplified  employment  is  not  compatible  with 
Clause  1(3)  of  Directive  2010/18/EU,  because  of  the  exclusion  of  workers  in  simplified 
employment relationships (who are specifically defined part-time workers) from the coverage 
of the parental leave regulations. The regulation does not specify any period of time following 
which workers with simplified employment have a right to parental leave.  
dismissal protection of a parent who is temporarily away from work in order to take care of a 
sick  child,  was repealed  by  the  new  Labour  Code.  In  this  event, the  parent  can  be  lawfully 
dismissed, but the start of the notice period is delayed until (s)he returns to work.  

The 

4. Statutory schemes of social security 

The Hungarian social security system covers all who perform work, receive income and pay 
contribution  (the  concept  of  ‘insured’),  regardless  of  the  form  of  contract  and  type  of 
employment relationship. The scope of the legislation covers all risks specified in Directive 
79/7/EEC  (sickness,  invalidity,  old  age,  industrial  accidents  and  occupational  diseases, 
unemployment)  and  ensures  equal  treatment  with  regard  to  access  to,  contribution  to  and 
benefits from insurance covering these risks.  

The  pensionable  age  is  62  for  both  men  and  women  and  will  gradually  increase  until 
reaching 65, in 2023. Starting in 2011, women are now entitled to a social security pension, 
regardless  of  their  age,  if  they  have  completed  40  years  of  service  and  paid  contribution 
correspondingly. This right is solely dependent on sex, regardless of family status or number 
of children. All childcare leaves build up service time for the purposes of pension entitlement. 
Both  parents are  entitled to  sick  leave  with  sickness benefits in  order  to  take  care  of a  sick 
child (with reduced job protection, as has been explained above). 

Hungarian law goes further than EU law as it also applies gender equality to survivor’s 
pensions (for surviving spouses, orphans or parents), and family allowances, in which regard 
neither the entitlement nor the amount depends on the sex of the claimant.  

5. Self-employed persons 

The  Equality  Act  covers  not  only  employed  women  but  those  in  ‘other  relationships  for 
work’,  which  covers  self-employed  persons  as  well.  Consequently,  the  prohibition  of 
discrimination  on  the  basis  of  sex,  pregnancy  and  family  status  applies  to  these  women  as 
well.  However,  it  must  be  noted  that  the  concept  of  ‘self-employed  person’  has  not  been 
transposed into  Hungarian law  properly: instead,  the concept  of  ‘individual  entrepreneur’ is 
used, in which regard the (usually fictive) ‘entrepreneurial’ position of the individual is taken 
into account, and the need for specific (legal) protection is neglected. While equal treatment is 
formally guaranteed, no attention is paid to the disproportionately disadvantaged position of 
self-employed women in reality. For example, in case of pregnancy and childbirth, although 
an  individual  entrepreneur  is  formally  entitled  to  the  same  benefits  as  other  women  in 
employment relationships, in reality she can rarely enjoy them because of being unable to stay 
away from her business for such a long period, and usually no supportive childcare services 
are available either.  

Still, the Hungarian legal system complies with the EU acquis in the sense that it does not 

differentiate between men and women in the norms relating to individual entrepreneurship.  

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6. Goods and services 

According  to  the  Equality  Act,  the  principle  of  equal  treatment  has  to  be  observed  in  all 
public services, including public and higher education, social care, child welfare, healthcare 
services,  public  utilities,  etc.  Private  services  are  also  covered  by  the  Equality  Act  if  they 
concern offers and calls for offers (tenders) presented to the public (preliminarily undefined 
persons), and if they concern services that are provided and goods that are sold at premises 
open to the public. 

The  extensive  legislation  has  not  had  much  impact  in  practice:  there  are  several 
discriminatory practices regarding women or mothers of small children. It is quite common – 
especially in the countryside – for mothers with small children to be prohibited from entering 
a shop with a pram. The usual justification of this discriminatory practice is that prams can be 
used for the purposes of shoplifting. The Equal Treatment Authority applies sanctions to fight 
this unlawful practice. 

The recent Government Decree on homebirth discriminates against women on the ground 
of age, because entire groups of women are excluded from homebirth (women under 18 and 
over 40, the latter in case of a first birth), and is discriminatory on the ground of wealth, as 
well,  because  only  women  who  can  pay  for  the  extremely  expensive  private  insurance  can 
enjoy the right to freely determine the conditions of their delivery.194  

7. Enforcement and compliance aspects 

Per year, only around 50 cases are filed with the Equal Treatment Agency regarding gender, 
pregnancy  and  motherhood,  out  of  which  approximately  5-7  cases  are  considered  well-
grounded.195 There are no specific statistics with regard to cases filed with labour courts and 
courts of other jurisdictions. Still, we may assume that the number of cases is equally low. 

The Equal Treatment Agency (ETA) has little to offer to petitioners: the Agency can only 
establish the infringement of law, issue fines and order the publication of its decision on its 
own and the violator’s website, but is not authorised to impose sanctions which could repair 
the harm suffered by the petitioner (e.g. reinstatement into the job, payment of compensation). 
For the application of such sanctions, the applicant has to submit the case to a court of law 
(instead of or following the procedure at the ETA). Hungarian anti-discrimination legislation 
makes  it  rather  difficult  and  expensive  for  women  to  seek  effective,  proportionate  and 
dissuasive  penalties,  since  the  enactment  of  the  Equality  Act,  as  has  been  pointed  out  by 
experts on several occasions. 

Both  the  enforcement  of  gender  equality  law  and  the  enactment  of  new  pieces  of 
legislation  have  been  hampered  by  the  recent  empowerment  of  the  ever-existing  male 
approach, which permeates private and public relationships alike. This attitude has prevented 
Hungary  in  the  past  two  decades  from  criminalising  domestic  violence,  which  finally  took 
place in 2013, when a very controversial law was passed.196  

8. Overall assessment 

With  some  gaps,  Hungarian  law  has  properly  transposed  the  EU  acquis  communautaire, 
although the adequacy of Hungarian law has been reduced in the past few years.  

The major theoretical shortcoming of Hungarian legislation (dating back to the original 
adoption  of  the  Equality  Act)  is  that  the  excessively  wide  scope  of  the  Equality  Act  is 
counterbalanced  by  the  similarly  excessively  wide  terms  for  exemptions.  Consequently, 
protection  is  weak  because  the  accused  could  exculpate  him/herself  in  most  of  the  cases. 

194  35/2011 (III. 21.) Korm. rendelet az intézeten kívüli szülés szakmai szabályairól, feltételeiről és kizáró okairól 
(Government Decree 35/2011 (III.21.) on the rules, conditions and excluding factors regarding giving birth 
outside (healthcare) institutions). 

195  Data provided by the Equal Treatment Agency. 
196  Article 19 of Act LXXVIII of 2013, establishing the new crime of domestic violence. 

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More  clearly  targeted  legislation  which  counterbalances  the  interests  of  the  parties  more 
carefully  and  reflectively  for  specific  situations  of  infringements  of  equal  treatment  rights 
would provide a much more reliable and solid legal protection in the gender equality field.  

The recent renascence of the belief in the omnipotence of the free market forces’ power 
and the freedom of contract (resulting for example in the argument that all or almost all legal 
boundaries must be eliminated in order to make the employer able to decide freely over the 
continuation  or  termination  of  employment  contracts)  provide  the  violators  of  equality  law 
with an inexhaustible resource for justifications, which are sometimes even accepted by the 
courts. 

The idea that the equal sharing of family responsibilities is the key to combating gender 
discrimination is still not widely accepted either by the general public or the legislator. The 
societal norms that women are responsible for family matters (which are strengthened by the 
ruling political forces) are contrary to the ideas on the balanced participation of women and 
men in family and working life. The regulations regarding generous parental leaves and the 
attitudes towards caring for children mutually reinforce each other in Hungary, which hinders 
women’s equal participation in many aspects of life. 

ICELAND – Herdís Thorgeirsdóttir 

1. Implementation of central concepts 

In  1994,  a  human  rights  section  was  included  in  the  Icelandic  Constitution,  introducing  a 
provision  guaranteeing  in  Article  65  Paragraph  1  the  enjoyment  of  human  rights  without 
prejudice to sex, religion, opinion, national origin, race, colour, property, birth or other status.  
During  the  constitutional  amendment  process,  a  later  paragraph  was  added  to  the  said 

Article 65 specifically stating: ‘Men and women shall enjoy equal rights in all respects’.  

As a prohibition against discrimination was already mentioned in the first paragraph, the 
latter paragraph is a clear indicator of the strong emphasis on the need for affirmative action 
to achieve gender equality without explicitly mentioning the need for temporary measures in 
favour of the underrepresented sex. 

The right not to be discriminated against was introduced into the human rights chapter to 
confirm  the  Icelandic  legislator’s  dedication  to  the  existing  international  treaty  obligations. 
Iceland  ratified  the  International  Covenant  on  Civil  and  Political  Rights  (ICCPR)  in  1979. 
Article 26 of the ICCPR is an unequivocal statement of the right of all persons to be equal 
before the law and to be entitled without any discrimination to the equal protection of the law. 
The principle of non-discrimination in the Icelandic Constitution was meant to have a wider 
application than the non-discrimination clause of the European Convention on Human Rights, 
which was incorporated into Icelandic law in 1994, as it was to apply to the whole spectrum 
of legislation so that everyone is equal before the law.  It was furthermore mentioned in the 
explanatory  report  to  the  amended  provisions  of  the  Constitution  that  certain  specific 
international  treaties  provided  scope  for  positive  action  where  there  was  a  real  need  to 
improve the situation of groups in danger of being discriminated against. Iceland ratified the 
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 
1985.  CEDAW  contains  a  provision  (Article  4)  enabling  States  Parties  to  adopt  temporary 
special  measures  aimed  at  accelerating  de  facto  equality  between  men  and  women.  The 
drafters of the amended human rights chapter of the Constitution stated that it might well be 
justifiable to resort to measures in legislation to accelerate de facto equality.  

Article 65 does not protect equality as a substantial right. It rather is a guiding principle 
which  is  to  prevail  in  any  decision  bearing  on  equality,  such  as  for  example  referred  to  in 
Administrative Procedures Act No. 37/1993 (Article 11), which applies to state and municipal 
administration. The principle of equality in its Article 11 provides that public authorities when 
deciding  cases  shall  make  every  effort  to  ensure  that,  legally,  it  is  consistent  with  and 
observes the rules of equal treatment. The parties to a case must not be discriminated against 

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on the grounds of their sex (or ethnic origin, colour, nationality, religion, political conviction, 
family or other comparable considerations).  

The  first  equal  rights  act  was  adopted  in  1976,  placing  the  obligation  on  authorities  to 
work towards de facto gender equality. Since then the law has been amended four times by 
Laws No. 65/1985, No. 28/1991, No. 96/2000 and the present gender equality act, the Act on 
Equal Status and Equal Rights of Women and Men (Act No. 10/2008, hereinafter GEA). 

The GEA of 2008 is to firmly and fully establish the principles of the EU directives that 
have  been  incorporated  through  the  EEA  treaty  into  Icelandic  law:  Directive  75/117/EC  on 
the approximation of the laws of the Member States relating to the application of the principle 
of equal pay for men and women; Directive 76/207/EC on the implementation of the principle 
of equal treatment for men and women as regards access to employment, vocational training 
and promotion, and working conditions; Directive 92/85/EC on the introduction of measures 
to encourage improvements in the safety and health at work of pregnant workers and workers 
who  have  recently  given  birth  or  are  breastfeeding;  Directive  96/34/EC  on  the  framework 
agreement  on  parental  leave;  Directive  97/80/EC  on  the  burden  of  proof  in  cases  of 
discrimination  and  Directive  2002/73/EC  amending  Council  Directive  76/207/EC  on  the 
implementation of the principle of equal treatment for men and women as regards access to 
employment, vocational training and promotion, and working conditions.  

The 2008 GEA defines the central concepts of the law in Article 2 as follows: 

–  Direct  discrimination:  When  one  individual  receives  less  favourable  treatment  than 

– 

another of the opposite sex in comparable circumstances.  
Indirect discrimination: When an impartial requirement, standard of reference or measure 
affects  either  sex  more  strongly  than  the  other,  unless  this  is  appropriate,  necessary  or 
justifiable in terms of impartial considerations independent of gender. 

–  Gender-based  harassment:  Any  type  of  unfair  and/or  insulting  behaviour  which  is 
connected  with  the  gender  of  the  person  affected  by  it,  is  unwelcome  and  impairs  the 
self-respect  of  the  person  affected  by  it,  and  which  is  continued  in  spite  of  a  clear 
indication that it is unwelcome. This harassment may be physical, verbal or symbolic. A 
single instance may be considered as gender-based harassment if it is serious.  

–  Sexual  harassment:  Any  type  of  unfair  and/or  insulting  sexual  behaviour  which  is 
unwelcome  and  impairs  the  self-respect  of  the  person  affected  by  it,  and  which  is 
continued  in  spite  of  a  clear  indication  that  it  is  unwelcome.  This  harassment  may  be 
physical, verbal or symbolic. A single instance may be considered sexual harassment if it 
is serious. 

–  Gender-based  violence:  Violence  based  on  gender  which  results  in,  or  could  result  in, 
physical,  sexual  or  psychological  injury  or  suffering  on  the  part  of  the  victim;  also  the 
threat of such and coercion or arbitrary deprivation of freedom, both in private life and in 
a public venue.  

–  Gender  mainstreaming:  Organising,  improving,  developing  and  evaluating  the  policy-
making process in such a way that the gender equality perspective is incorporated in all 
spheres in the policy-making and decisions of those who are generally involved in policy-
making in society. 

–  Affirmative action: Special temporary measures that are intended to improve the position 
of, or increase the opportunities of, women or men, aimed at establishing gender equality 
in  a  specific  field  where  either  sex  is  at  a  disadvantage.  In  such  cases  it  may  prove 
necessary to give either sex temporary priority in order to achieve balance. 

–  Wages:  Ordinary  remuneration  for  work  and  further  payments  of  all  types,  direct  and 
indirect, whether they take the form of perquisites or other forms, paid by the employer to 
the employee for his or her work. 

–  Terms:  Wages  together  with  pension  rights,  holiday  rights  and  entitlement  to  wages  in 
the  event  of  illness  and  all  other  forms  of  employment  or  entitlements  that  can  be 
evaluated in monetary terms. 

The Icelandic national law provisions exceed the requirements of EU law regarding positive 
action. Where EU law is merely permissive, the GEA explicitly states that the aim of this Act 

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is to promote gender equality in all spheres of society by: working to secure equal influence 
of women and men in society; specifically improving the position of women and increasing 
their opportunities in society; working against wage discrimination and other forms of gender-
based discrimination on the employment market; enabling both women and men to reconcile 
their  work  and  family  life;  and  working  against  gender-based  violence  and  harassment  and 
negative stereotypes regarding the roles of women and men.  

The  GEA  imposes  positive  obligations  on  employers  and  trade  unions  to  work 
purposefully  to  bring  women  and  men  on  an  equal  footing  within  their  enterprises  or 
institutions and to take steps to avoid jobs being classified as specifically women’s or men’s 
jobs.  Particular  emphasis  shall  be  placed  on  achieving  equal  representation  of  women  and 
men  in  managerial  and  influential  positions.  The  last  aim  mentioned  above  is  elaborated  in 
Section III of the GEA on rights and obligations in the labour market, stating in Article 18: 
‘Particular emphasis shall be placed on achieving equal representation of women and men in 
managerial positions’. 

The GEA stipulates in its Article 15 that regarding the participation in government and 
municipal  committees,  councils  and  boards,  care  shall  be  taken  to  ensure  as  equal  a 
representation of men and women as possible and not lower than 40 % where there are more 
representatives  in  a  body.  This  shall  also  apply  to  the  boards  of  publicly-owned  limited 
companies and enterprises in which the state or a municipality is the majority owner. When 
nominations  are  made  to  national  and  local  government  committees,  councils and  boards, a 
man and a woman shall be nominated unless objective circumstances make it impossible to 
nominate both and then the nominating party must explain the reasons for this. 

On 1 September 2013 a new law amending the Act on Public Limited Companies197 took 
effect. This law provides that on Boards of Directors of Official Public Limited Companies 
and  Public  Limited  Companies  with  more  than  25  employees  generally  on  an annual  basis, 
each  sex  shall  be  represented  on  the  Board  when  the  Board  consists  of  three  persons,  and 
when members of the Board of Directors are more than three in such Companies it shall be 
ensured that the sex ratio be not lower than 40 %.198 By the end of 2013 women constituted 31 
% as opposed to 69 % men on the boards of directors and substitute directors in public limited 
companies with more than 50 employees.199 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The equal pay clause in Article 19 of the GEA stipulates: ‘Women and men working for the 
same employer shall be paid equal wages and enjoy equal terms of employment for the same 
jobs or jobs of equal value’. The phrase ‘equal wages’ means that wages shall be determined 
in the same way for women and men. The criteria on the basis of which wages are determined 
must not involve gender discrimination. In assessing whether the work is of ‘equal value’ the 
criteria  are  based  on  a  contextual  and  coherent  evaluation.  The  underlying  premise  is  that 
when this assessment or evaluation takes place the individuals in question are working for the 
same  employer  as  provided  in  the  first  paragraph  of  Article  19  of  the  GEA.  Significant 
changes have taken place in recent years and hence ‘the same employer’ covers employment 
in  the  same  ownership,  such  as  in  the  case  of  subsidiaries  or  branches.  A  job-classification 
system is used at the municipal level in Iceland. When such a system is used it is confirmed 

197  Act No. 13/2010 amending Act No. 2/1995. 
198  http://www.mbl.is/frettir/innlent/2013/03/17/konur_bjodi_sig_fram_i_stjornir_fyrirtaekja/, accessed 19 June 

2013. 

199  According to a survey by Credit Info for the SA-Confederation of Icelandic Employers; 

http://www.mbl.is/frettir/innlent/2014/01/17/konur_31_prosent_stjornarmanna/, accessed 18 June 2014. 

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that the evaluation does not assess the performance of the employer but entails analysis of the 
basic requirements that apply to those carrying out the job.200 

Pay inequality still prevails and is not decreasing in Icelandic society. The unexplained 
gender  pay  gap  (according  to  Eurostat)  was  18.1  %  in  2012;  18.5  %  in  the  general  labour 
market and 16.2 % among civil servants.201 In 2013 the unadjusted gender pay gap (using the 
Eurostat calculation) for the general labour market in Iceland increased to 19.9 %, from 18.1 
% in 2012. Among public servants the unadjusted gender pay gap was 15 % in 2013. In the 
public sector the gender pay gap among those working for the State (16.2 %) was wider than 
that for the municipal sector (5.6 %). At the municipal level, 75 % of employees are women, 
which may explain the much narrower gender pay gap.202 The widest unadjusted gender pay 
gap exists in the financing and insurance sector, where it is 37.1 %. The narrowest unadjusted 
gender pay gap is in the health and social sector, where it is 9.1 %.203 

The present Government adheres to the parliamentary resolution for the period of 2011-
2014 on the strategy in gender equality matters with emphasis on equal opportunities and for 
both  sexes  to  have  equal  chances  in  society.  The  main  objective  of  the  strategy  is  to 
mainstream gender equality in all spheres of decision-making and policy-making in society. A 
new  strategy  in  gender  equality  matters  will  be  submitted  during  the  next  session  of 
Parliament this autumn, based on recommendations of a working group. The focus will be on 
disintegrating the gender-segregated labour market.204 

In an attempt to raise public awareness of wage discrimination and the changing of public 
attitudes  in  accordance  with  Paragraph  (38)  of  the  preamble  to  the  Recast  Directive,  the 
present equal pay clause, Article 19 (3) of the GEA now grants workers the right at all times, 
upon  their  choice,  to  disclose  their  wages,  as  a  lack  of  transparency  enables  employers  to 
discriminate. The framing of this clause is, however, not likely to render any real results as 
those  that  have  grounds  to  believe  that  they  are  discriminated  against  cannot  enforce 
disclosure within their workplace. A remedy that depends on the willingness of a co-worker 
to  disclose  his  (better)  terms  in  a  competitive  environment  is  not  helpful  and  does  not 
constitute actual transparency. 

2.2. Access to work and working conditions 
Vacant positions that are open for application shall be equally accessible to women and men, 
as  stipulated  in  Article  20  of  the  GEA.  The  provision  makes  it  mandatory  on  employers  to 
take  the  necessary  measures  to  ensure  that  women  and  men  have  equal  opportunities 
regarding  retraining,  continuing  education  (lifelong  learning),  vocational  training,  and 
attending  courses  held  to  enhance  vocational  skills  or  to  prepare  for  other  assignments  or 
occupations.  

2.3. Occupational pension schemes 
Pension Act No. 129/1997 provides for a mandatory affiliation to the pension fund provided 
for in the applicable collective agreement, for all workers between the ages of 16 to 70. The 
participation in workers’ pension schemes is determined by the collective agreement on which 
the  basic  wages  for  each  worker  are  determined.  The  general  pension  age  is  67  and  the 
qualifying  condition  is  to  have  resided  in  Iceland  for  at  least  40  years  (three  years  for  a 
reduced pension) between the ages of 16 and 67, and to have an annual income below EUR 
25 423 (ISK 4 148 420). A pension supplement is granted if the insured’s annual income does 
not  exceed  a  certain  amount.  Social  allowances  (means-tested)  are  paid  for  living  expenses 

200  A report of a working group on the equal rights pay policy in the general labour market (2008), p. 40, 

http://www.velferdarraduneyti.is/media/08frettir/Skyrsla_starfshops_um_jafnlaunastefnu_a_almennum_vinnu
markadi.pdf, accessed 25 June 2013. 

201  http://www.mbl.is/frettir/innlent/2013/04/23/launamunur_kynjanna_18_1_prosent/, accessed 19 June 2013. 
202  http://www.mbl.is/frettir/innlent/2014/05/26/launamunur_kynjanna_19_9_prosent/, accessed 18 June 2014. 
203  http://www.mbl.is/frettir/innlent/2014/05/26/launamunur_kynjanna_19_9_prosent/, accessed 18 June 2014. 
204  Eyglo Hardardottir, Minister of Welfare in Frettabladid, 19 June 2014. 

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such as housing and medicine costs if the insured’s annual income does not exceed a certain 
amount. 
  Women whose careers have been interrupted by having children or working part time, or 
who have started working outside the home later in life, have not been able to add much to the 
modest income provided by social security through the mandatory occupational fund. There 
are  no  advantages  granted  to  persons  (women)  who  have  brought  up  children,  specifically 
concerning periods of interruption of employment. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  scope  of  the  Act  on  Maternity/Paternity  Leave  and  Parental  Leave,  No.  95/2000 
(hereinafter MPPL Act) with subsequent amendments, applies to the rights of parents working 
in  the  domestic  labour  market  to  be  granted  maternity/paternity  leave  and  parental  leave.  It 
applies to parents who are employed by others or who are self-employed. The MPPL Act also 
applies  to  parents  who  are  not  active  in  the  labour  market  and  parents  attending  full-time 
educational programmes as to receiving a maternity/paternity grant. The aim of the MPPL Act 
is  to  ensure  a  child’s  access  to  both  her/his  parents  and  to  enable  both  women  and  men  to 
reconcile work and family life. 

Under the MPPL Act each parent has an independent entitlement to maternity/paternity 
leave for up to three months due to birth, primary adoption or reception of a permanent foster 
child. This entitlement is not transferable. In addition, the parents have a joint entitlement to 
an additional three months, which either parent may  draw in its entirety or the parents may 
divide between them. 
  Maternity/paternity  leave  counts  as  working  time  for  the  purpose  of  assessing  work-
related rights, such as the right to holidays or the extension of the holiday period under wage 
agreements,  wage  increases  due  to  seniority,  entitlement  to  wages  in  the  event  of  illness,  a 
notice period of termination of employment and the right to unemployment benefits (Article 
14  MPPL).  The  employment  relationship  between  an  employee  and  her/his  employer  shall 
remain unchanged during maternity/paternity leave or parental leave.205 

Special consideration to women in connection with pregnancy and childbirth shall not be 

regarded as discrimination.206 

4. Statutory schemes of social security 

The  social  security  scheme  in  Iceland  is  a  tax-financed  public  pension  scheme,  which 
provides a flat-rate or means-tested basic pension. The social security scheme is a resident-
based scheme covering the whole population. This is in addition to the occupational pension 
scheme,  which  is  financed  by  the  contributors:  both  employees  and  employers.  The  whole 
working population must pay contributions into an occupational pension fund according to the 
Pension  Act  and  receives  pension  payments  from  this  pension  fund,  only  being  entitled  to 
additional payments from social security if their pension payments from occupational funds 
are below a certain level. Directive 79/7/EEC is in Annex XVIII to the EEA treaty. The first 
pillar  targeted  by  Directive  79/7/EEC  overlaps  with  the  second  pillar  targeted  by  Directive 
86/378/EEC  as  regards  pension  payments  because  traditional  first-pillar  pension  payments 
decrease  if  the  pensioner  simultaneously  receives  benefits  from  occupational  pension 
schemes, which are statutory in Iceland.207 

The pensionable age is the same for both sexes. Persons who are aged 67 years or older, 
and who have been resident in Iceland for at least three calendar years between the ages of 16 
and 67, are entitled to old-age pensions. 

205  Article 29 MPPL.  
206  Article 24 of Gender Equality Act No. 10/2008; Article 11 of Act on Maternity/Paternity Leave and Parental 

Leave No. 95/2000. 

207  Act on Mandatory Insurance of Pension Rights and on Activities of Pension Funds No.129/1997. 

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The exceptions provided for in Article 7 of Directive 79/EEC have not been implemented 
in Social Security Act No. 100/2007208 (there are no derived benefits), which is under revision 
at present. 

5. Self-employed persons  

The principle of equal treatment between men and women engaged in an activity, including 
agriculture, in a self-employed capacity, and the provisions on the protection of self-employed 
women during pregnancy and motherhood are to be found in the GEA, which applies in all 
spheres  of  society;  in  the  Act  on  Maternity/Paternity  and  Parental  Leave  which  applies  to 
parents who are self-employed and also to parents who are not active in the labour market; 
and  in  the  Act  on  Working  Environment,  Health  and  Safety  in  Workplaces  No.  46/1980, 
which covers all business operations where one or more persons are employed, whether they 
are  owners  of  the  enterprise  or  employees.  Spouses  of  self-employed  individuals  in 
agriculture  were  given  special  concern  during 
the  Act  on 
Maternity/Paternity and Parental Leave as the means to earn money among farmers are more 
restricted than among other walks of life. The gender pay gap is smaller in agriculture than in 
other spheres and, at the same time, average wages in agriculture are lower than in other fields 
of  work.  Women  farmers  who  run  a  farm  in  co-operation  with  their  spouses  complain  that 
they do not enjoy full recognition as self-employed individuals. Two self-employed persons 
cannot run a farm on an equal basis. The social security number of a farm can only be linked 
to one spouse, usually the husband, and hence the male farmer is the only official recipient of 
government payments. 

the  preparation  of 

Pension  Act  No.  129/1997  provides  for  compulsory  pension-fund  participation  of  all 
employed  persons  from  the  ages  of  16  to  70,  employees  or  self-employed  persons.  No  one 
may  be  refused  participation  in  a  pension  fund  for  reasons  of  health,  age,  marital  status, 
family size or gender. According to the Pension Act all employees receive the same benefits 
for equal contributions regardless of the longer life expectancy of women compared to men. 
Individuals receive payments throughout their lives.  

The  minimum  pension  fund  contribution  is  calculated  based  on  the  total  of  wages  and 
compensation for any kind of work, job and service. The minimum contribution is 10 % of the 
contribution base, of which 2 % is deducted from the worker’s wages and 8 % is added by the 
employer.  In  addition  to  this,  a  worker  may  pay  2  %  into  a  supplementary  contribution 
scheme (public or private pension fund) and in that case the employer’s counter-contribution 
is 2 %. 

Directive  2010/41  was  incorporated  into  the  EEA  treaty  on  2  February  2012.  The 

deadline to implement the Directive has not yet passed. 

6. Goods and services  

Directive  2004/113  on  equal  treatment  of  men  and  women  in  the  access  to  and  supply  of 
goods  and  services  has  not  been  incorporated  into  the  EEA  treaty  by  the  EEA  Joint 
Committee and has therefore not been implemented directly into domestic law. On 16 May 
2012 the National Parliament (the Althing) granted the Government permission to confirm the 
decision of the EEA Joint Committee, No. 147/2009, to incorporate Directive 2004/113 into 
the  EEA  Treaty.  It  is  therefore  to  be  expected  that  this  incorporation  will  take  place  in  the 
coming months and that it will subsequently be implemented into domestic law.  

208  As amended by Acts No. 105/2007, No. 160/2007, No. 17/2008, No. 57/2008, No. 112/2008, No. 155/2008, 
No. 173/2008, No. 55/2009, No. 70/2009, No. 97/2009, No. 120/2009, No. 136/2009, No. 65/2010, No. 
162/2010, No. 164/2010, No. 51/2011, No. 106/2011, No. 126/2011, No. 178/2011, No. 28/2012 and No. 
134/2012. 

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The GEA prohibits discrimination in the areas of employment, occupation and vocational 
training  while  Directive  2004/113/EC  covers  other  areas  outside  employment  and 
professional life and will therefore supplement the existing legislation when implemented. 

7. Enforcement and compliance aspects  

The Supreme Court of Iceland is the highest judicial instance in Iceland and hears appeals of 
the  district  courts  (two-level  judicial  system).  Individuals,  enterprises,  institutions  and  non-
governmental  organisations,  either  in  their  own  name  or  on  behalf  of  their  members,  who 
consider that they are victims of violations of the GEA may submit their case to the Gender 
Equality Complaints Committee but its rulings may not be referred to a higher authority. The 
Centre for Gender Equality, if it has reason to suspect that an institution, enterprise or non-
governmental association has  violated the  GEA,  shall  investigate  whether  there is reason to 
request  the  Gender  Equality  Complaints  Committee  to  examine  the  matter.  The  relevant 
institution  or  NGO  shall  be  obliged  to  provide  the  Centre  for  Gender  Equality  with  the 
material it considers necessary to reveal the facts of the case. If the parties concerned do not 
comply within a reasonable time limit, the Centre may decide that they are to pay per diem 
fines until the information has been provided. When a party against whom a ruling is directed 
fails  to  comply  with  it,  the  Centre  may  instruct  the  party  to  take  satisfactory  remedial 
measures in accordance with the ruling within a reasonable time limit. 

The prohibition  against  discrimination is set forth in Section  IV  of  the  GEA,  including 
the  general  prohibition  against  discrimination,  the  prohibition  against  discrimination 
regarding  terms  at  work  and  on  engagement  in  employment,  and  in  connection  with  a 
complaint or demand for redress.  

If a superior is charged with alleged gender-based or sexual harassment, he or she shall 
be non-competent to take decisions regarding the working conditions of the claimant during 
the examination of the case, and the next superior shall take such decisions. 

No person may waive the rights set forth in the GEA. 
Sanctions  include  compensation  for  financial  and  non-financial  loss.  Violations  of  the 
GEA,  or  of  regulations  issued  under  the  GEA,  may  be  punishable  by  fines  unless  heavier 
penalties are prescribed in other statutes. Fines shall be paid to the State Treasury. 

Cases  involving  violations  of  the  GEA,  or  of  regulations  issued  thereunder,  shall  be 
handled as criminal cases. Once a prima facie case is established the burden of proof shifts to 
the defendant: for example, the employer must demonstrate that a difference in wages can be 
explained on other grounds than sex. 

8. Overall assessment 

The overall implementation of the EU gender equality acquis appears to be satisfactory. 

IRELAND – Frances Meenan 

1. Implementation of central concepts 

The Irish Constitution of 1937 forbids any exclusion by reason of sex from Irish nationality 
and  citizenship.  Article  40  states  that  ‘all  citizens  shall,  as  human  persons,  be  held  equal 
before  the  law’  and  proceeds  to  allow  the  State,  in  its  enactments,  to  ‘have  due  regard  to 
differences of capacity, physical and moral, and of social function’. Article 45 provides that 
all citizens, ‘men and women equally’, have the right to an adequate means of livelihood’, and 
directs the State to ensure that they may ‘through their occupations find the means of making 
reasonable provision for their domestic needs’. 

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The Employment Equality Acts 1998 to 2011209 prohibit discrimination, both direct and 
indirect, on nine grounds,210 including the gender ground. The scope of the Acts is very broad 
and  includes  all  workers  and  agency  workers.211  There  is  no  reference  to  gender  re-
assignment; however, the Government published a revised General Scheme for the proposed 
Gender Recognition Bill in June 2014.212 The Programme also provides that at least 40 % of 
persons on state boards should be women.213 The Employment Equality Acts implement the 
requirements of EU law. Discrimination shall be taken to occur where a person is treated less 
favourably than another person is, has been or would be treated in a comparable situation on 
any  of  the  grounds  which  exist,  existed  but  no  longer  exists,  may  exist  in  the  future  or  is 
imputed to the person concerned.214 An instruction to discriminate against persons on grounds 
of  gender  shall  be  deemed  to  be  discrimination.  There  may  also  be  discrimination  by 
association.  Indirect  discrimination  is  prohibited  in  respect  of  remuneration  and  equal 
treatment.215  Indirect  discrimination  occurs  where  an  apparently  neutral  provision  puts 
persons of a particular gender at a particular disadvantage in respect of remuneration or any 
matter other than remuneration, as compared with other employees of their employer, unless 
the provision is objectively justified by a legitimate aim and a means of achieving that aim are 
appropriate and necessary.  

There  may  be  positive  action  in  respect  of  any  measures  maintained  or  adopted  with  a 
view  to  ensuring  full  equality  in  practice  between  men  and  women  and  providing  for  a 
specific advantage so as to make it easier for the under-represented sex to pursue a vocational 
activity or to prevent or compensate for disadvantages in professional careers. 

Both gender harassment and sexual harassment are prohibited.216 Harassment is any form 
of unwanted conduct related to gender and references to sexual harassment are to any form of 
unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in 
either  case  has  the  purpose  or  effect  of  violating  a  person’s  dignity  and  creating  an 
intimidating,  hostile,  degrading,  humiliating  or  offensive  environment  for  the  person. 
Unwanted  conduct  may  consist  of  acts,  requests,  spoken  words,  gestures  or  the  production, 
display or circulation of written words, pictures or other material. An employee must not be 
victimised for rejecting such harassment.  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The Employment Equality Acts 1998 to 2011 provide that there cannot be direct or indirect 
pay discrimination in relation to employment on the gender ground. Remuneration has a wide 
definition and includes not only basic pay and is similar to Article 157 TFEU. It has been held 
to  include  accommodation,  bonus  earnings,  commission  payments,  marriage  gratuities, 
overtime  payments,  permanent  health  insurance,  redundancy  payments  and  sickness 
payments. In order to bring a claim a claimant must show that there is a person of the opposite 
sex (the comparator) in the same employment working for the same or an associated employer 

209  As of July 2014, the Irish Human Rights and Equality Commission Act was signed by the President, but is 

awaiting the necessary commencement orders. 

210  Gender, civil status, family status, sexual orientation, religion, age, disability, race and the Traveller 

community ground (the Traveller community is the community of people commonly so called who are 
identified (both by themselves and others) as people with a shared history, culture and traditions including, 
historically, a nomadic way of life on the island of Ireland) (Section 6 of the 1998 Act). ‘Civil status’ means 
single, married, separated, divorced, widowed, in a civil partnership or being a former civil partner or in a civil 
partnership that has ended by death or by being dissolved. This term was provided by the Civil Partnership and 
Certain Rights and Obligations of Cohabitants Act 2010.  

211  Protection of Employees (Agency Workers) Act 2012. 
212  Available at www.welfare.ie. Accessed 3 September 2014. 
213  http://www.taoiseach.ie/eng/Publications/Publications_2011/Programme_for_Government_2011.pdf, accessed 

3 June 2014. 

214  Section 6 of the Employment Equality Act 1998 (as amended). 
215  Sections 19 and 22 of the Employment Equality Act 1998 (as amended).  
216  Section 14A of the Employment Equality Act 1998 (as amended). 

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doing ‘like work’. ‘Like work’ is defined as where two people perform the same work under 
the same or similar conditions or each is interchangeable with the other, similar work or work 
performed by one is equal in value to the work performed by the other, having regard to such 
matters  as  skill,  physical  or  mental  requirements,  responsibility  and  working  conditions.  A 
claimant is entitled to the same rate of remuneration as a comparator of the opposite sex. The 
employer may use the defence of grounds other than sex. 

2.2. Access to work and working conditions 
The  Employment  Equality  Acts  1998  to  2011  apply.  An  employer  shall  not  discriminate 
against  an  employee  or  a  prospective  employee  in  relation  to  access  to  employment,  entry 
requirements,  conditions  of  employment,  training  or  experience  for  or  in  relation  to 
employment,  promotion  or  degrading,  or  classification  of  posts,  instructions  or  practices.217 
There  shall  be  no  discriminatory  advertising  and  the  Equality  Authority  may  apply  to  the 
courts  to  obtain  an  injunction  preventing  the  appointment  of  any  person  to  which  the 
advertisement relates. The Acts apply likewise to a partner in a partnership as if s/he were an 
employee. There cannot be discrimination in respect of vocational training. It is not unlawful 
to confine a post to a man or a woman where gender is a bona fide occupational qualification. 

2.3. Occupational pension schemes 
Occupational benefit schemes are defined in Part VII of the Pensions Act 2004. There cannot 
be  discrimination  (direct  or  indirect)  on  the  ground  of  gender.218  The  definition  includes 
schemes  for  both  self-employed  and  employed  persons.  ‘Occupational  benefits’  include 
benefits  in  the  form  of  pensions  relating  to  termination  of  service,  retirement,  old  age  or 
death,  interruptions  of  service  by  reason  of  sickness  or  invalidity  (income  continuance), 
accidents,  injuries  or  diseases  arising  out  of  or  in  the  course  of  a  person’s  employment, 
unemployment, expenses incurred in connection with children or other dependants. There are 
detailed provisions which render unequal rules null and void and automatically equalise the 
terms  of  the  scheme  to  provide  the  equivalent  treatment.  Where  there  are  provisions  which 
infringe  the  principle  of  equal  pension  treatment  on  the  gender  ground  and  which  are 
purported to take effect on or after 5 April 2004 (the date of the commencement of the Act), 
the  provision  is  levelled  up  from  that  date  until  equalised  on  another  basis.  Both  the 
Protection  of  Employees  (Part-Time  Work)  Act  2001  and  the  Protection  of  Employees 
(Fixed-Term Work) Act 2003 provide that part-time employees who work less than 20 % of 
the normal hours of work of a comparable full-time employee may be treated less favourably 
in respect of pensions. Such exclusion could constitute indirect discrimination. 

Pensionable age has been the same for men and women in Ireland both in occupational 
pensions and in respect of statutory retirement.219 Account shall not be taken of differences in 
the level of contributions or the amount of benefits which have been included for the purpose 
of  removing  or  limiting  differences  as  between  men  and  women  or  to  the  extent  that  the 
difference results from the use of actuarial factors differing according to sex. There cannot be 
gender  discrimination  in  respect  of  survivor’s  benefits  or  a  deceased  member’s  widow  or 
widower. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The Maternity Protection Acts 1994 and 2004 cover all female employees and the employed 
father on the death of the mother. An employee is entitled to paid time off for antenatal and 
postnatal  medical  checks  and  also  for  certain  antenatal  classes.  Maternity  leave  is  for  26 

217  Section 8 of the Employment Equality Act 1998 (as amended). 
218  Or on any of the other eight grounds listed in the employment equality or equal status legislation. The Civil 

Partnership and Certain Rights and Obligations of Cohabitants Act 2010 also amends the pensions legislation 
and amends the ‘marital status’ ground to that of ‘civil status’. 

219  The normal retirement age is usually 65 years. However, the Public Service Pensions (Single Scheme and 

Other Provisions) Act 2012 has raised the minimum pension age to 66 years.  

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consecutive weeks. Employees on maternity leave are in receipt of state maternity benefit for 
the duration of such leave but employers may ‘top up’ payment to normal remuneration. An 
employee is also entitled to an optional 16 weeks (unpaid) additional maternity leave. There 
are certain rules in the event of the illness of the mother and/or the hospitalisation of the baby. 
An  employee  is  deemed  to  be  in  employment  during  any  leave.  Dismissal  during  leave  or 
notices of termination given during leave and to take effect during leave or after the end of 
leave  are  void.  Any  period  of  probation,  training  or  apprenticeship  is  suspended  during 
absence on leave. There is a general right to return to the same job for employees who have 
been  on  maternity  leave.  There  is  a  right  to  suitable  alternative  work  provided  the  work  is 
appropriate and under the same terms and conditions of employment.  

Employers must carry out a risk assessment of the health and safety of employees who 
are  pregnant  or  breastfeeding.  An  employee  who  is  pregnant  or  is  breastfeeding  is  granted 
paid health and safety leave from their employment if their employer cannot remove a risk to 
their  health  and  safety,  or  alternatively  provide  the  employee  with  ‘risk-free’  duties.  If  a 
doctor  certifies  that  a  woman  should  not  perform  night  work  during  pregnancy  or  within 
fourteen weeks of the birth then she shall be transferred to day work. There is entitlement to 
time off work or a reduction of working hours for breastfeeding.  

The  Adoptive  Leave  Acts  1995  and  2005  mirror  the  maternity  leave  provisions  (as 

appropriate) for an adopting mother or sole male adopter.  

The  Parental  Leave  Acts  1998  to  2008  as  amended  by  the  European  Union  (Parental 
Leave) Regulations220 provide that each employee parent (with one year’s service) is entitled 
to 18 weeks unpaid leave for each natural or adopted child until it reaches the age of eight. 
Leave  is  non-transferable  between  parents  except  when  they  are  working  for  the  same 
employer. Parental leave may consist of a continuous period of 18 weeks or of separate blocks 
of  a  minimum  of  6  continuous  weeks  or  by  agreement  on  more  favourable  terms.  The 
employee  has  the  right  to  return  to  his/her  own  job  or  suitable  alternative  employment. 
Parents  are  also  allowed  to  request  a  change  in  their  working  hours  or  pattern  of  work. 
Employers are required to consider the request but are not required to grant it. Time spent on 
parental leave is deemed to be time spent at work. There is provision for force majeure leave 
in  the  event  of  the  urgent  illness  of  a  relation  (including  a  relationship  of  domestic 
dependency  and  same-sex  partners)  where  the  immediate  presence  of  the  employee  is 
required and is indispensable.  

There is provision for carer’s leave with carer’s benefit and allowance (up to 104 weeks 
under the Carer’s Leave Act 2001 with a right to return to work) when persons have to leave 
the workforce or work shorter hours due to looking after an incapacitated person in their own 
home.  

4. Statutory schemes of social security 

Employers and employees pay Pay-Related Social Insurance contributions. Most contributory 
entitlements are based on the number of weeks of contributions. The social welfare provisions 
are contained in the Social Welfare (Consolidation) Act 2005 (as amended). Such legislation 
and  rules  are  complex.  The  legislation  provides  for  state  benefits/assistance  in  respect  of 
disability,  unemployment,  occupational  injuries,  health  and  safety  (where  the  employment 
would affect mother and child), old age (contributory and non-contributory) and retirement, 
invalidity, widow’s and widower’s pension. There are various other supplementary schemes 
for  such  persons.  There  are  also  various  schemes  which  provide  additional  allowances  or 
supplements  for  persons  who  may  wish  to  go  back  to  work  or  enter  the  workforce.  In 
summary  they  provide  for  the  granting  of  various  benefits  if  persons  wish  to  obtain  higher 
education at a later age. Since 1991 most part-time workers are included in the social welfare 
scheme.  However,  this  group  would  have  reduced  social  welfare  contributions,  i.e.  the 
number  of  years  of  contribution,  and  arguably  this  could  be  deemed  to  be  indirect 

220  S.I. No. 81 of 2003.  

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discrimination as the vast majority of such employees are women. In the main all movement 
in  the  tax  and  social  welfare  system  is  towards  individualisation.  Whilst  the  rules  are 
extremely complicated, there appears to be compliance with Directive 79/7.  

5. Self-employed persons 

Regarding Directive 2010/41/EU, Ireland had requested the additional time period allowed for 
in  Article  16(2)  for  the  implementation  of  Articles  7  and  8,  and  have  notified  existing 
measures for the remainder.221 The Social Welfare and Pensions Act 2014 provides that the 
spouse or civil partner of a self-employed person who carries out the same or ancillary tasks 
and earns over EUR 5 000 shall be entitled to Pay Related Social Insurance, and be eligible to 
receive various entitlements (maternity and adoptive leave benefit and state pension).222 The 
Act  will  be  effective  from  the  year  2014.  This  provision  applies  where  there  is  no  formal 
partnership in place (e.g. a family business).  

The definition of the contract of employment in the Employment Equality Acts extends 
to  include  the  self-employed  within  the  scope  of  the  legislation.  Family  members  working 
together  are  generally  not  insurable  under  the  social  welfare  legislation.  Spouses  of  an 
employed  or  self-employed  contributor  are  specifically  exempt  from  social  insurance 
contributions. However, spouses who are partners in a family business, or who work together 
in a legally incorporated company can be insurable. Self-employed partners have protection 
under the Employment Equality Acts 1998 to 2011 and self-employed women are entitled to 
state maternity and adoptive leave benefits. Individual pension contracts concluded for or on 
behalf  of  self-employed  persons  are  excluded  from  the  scope  of  the  Pension  Acts  1990-
2012.223 

6. Goods and services  

The  Equal  Status  Acts  2000224  to  2012  provide  that  there  cannot  be  direct  discrimination, 
discrimination by association or by imputation, or indirect discrimination based on gender225 
in respect of the access to and supply of goods and services, the disposal of premises and the 
provision  of  accommodation,  activities  of  educational  establishments  and  activities  of 
registered  clubs.  A  male-only  golf  club  was  considered  not  to  be  discriminatory  under  the 
Acts.226  There  cannot  be  gender  discrimination  or  sexual  harassment.  There  are  certain 
exceptions on the ground of gender (for example on grounds of authenticity, privacy, sporting 
facilities  or  single-sex  schools).  The  non-discrimination  provision  provides  that  it  shall  not 
apply  to  differences  in  the  treatment  of  persons  in  relation  to  annuities,  pensions,  insurance 
policies or any other matters related to the assessment of risk where the treatment is effected 
by reference to actuarial or statistical data obtained from a source on which it is reasonable to 
rely, or other relevant underwriting or commercial factors and is reasonable having regard to 
the  data  or  other  relevant  factors.  Ireland  is  availing  itself  of  the  derogation.  From  21 

221  The Department of Social Protection has just published the details in respect of the payment of Pay Related 
Social Insurance (‘PRSI’) by the spouse or civil partner of the self-employed who are doing the same or 
ancillary tasks as their spouse or partner. See: http://www.welfare.ie/en/Pages/Change-to-Self-Employed-
Social-Insurance.aspx, accessed 3 September 2014. 

222  See: http://www.oireachtas.ie/viewdoc.asp?DocID=26812&CatID=87, accessed 3 September 2014. 
223  I.e. one-member schemes. 
224  There was a further amendment to these Acts in respect of claims against licensed premises by the Intoxicating 

Liquor Act 2003. 

225  Or on any of the other grounds as under the Employment Equality Acts 1998 – 2008, as set out above. The 

Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 also amended the Equal Status 
Acts 2000 to 2008. The definition of ‘family status’ includes ‘being pregnant’. There is no reference to gender 
reassignment. 

226  In the Matter of Section 2 of the Summary Jurisdiction Act, 1857 as amended by section 51 of the Courts 

(Supplemental Provisions) Act, 1961, the Equality Authority v Portmarnock Golf Club and Others and Robert 
C. Cuddy and David Keane, Ireland and the Attorney General [2005] IEHC 235, [2009] IESC 73.  

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December  2009  there  cannot  be  differences  in  the  treatment  in  relation  to  pregnancy  and 
maternity. The Equal Status (Amendment) Act 2012 entered into force on 20 December 2012. 
The Act provides for the amendment of certain provisions of the Equal Status Act 2000 so as 
to  provide  in  Irish  law  for  the  mandatory  introduction  of  unisex  contributions  (premia)  and 
benefits in insurance as from 21 December 2013.  

7. Enforcement and compliance aspects 

A person may seek material information from the person who allegedly discriminated against 
them.227 The parties may refer a case to mediation. In any proceedings under the Employment 
Equality  Acts  the  claimant  must  present  a  prima  facie  case  of  discrimination  and,  if  this  is 
successful, the burden of proof then falls on the respondent to show that there was no such 
discrimination. The claim must be brought within six months of the alleged discrimination. If 
there  are proceedings  on more  than  one  ground,  each  ground is  a  separate  claim.  Cases  are 
referred  in  the  first  instance  to  the  Equality  Tribunal  or  on  the  gender  ground  only  to  the 
Circuit Court. A decision of the Equality Tribunal may be appealed before the Labour Court. 
There may be appeals on a point of law before the High Court. The Equality Tribunal may 
order in respect of equal pay arrears of remuneration not earlier than three years prior to the 
date  of  reference  of  the  claim  with  an  order  for  on-going  equal  pay,  and  an  order  for 
compensation  for  the  effects  of  acts  of  discrimination  or  victimisation.  In  equal  treatment 
cases there may be an order for compensation of up to a maximum of two years’ remuneration 
or EUR 40 000 whichever is the greater228 and/or an order for a specified course of action. In 
dismissal  cases  reinstatement,  re-engagement  or  compensation  up  to  a  maximum  of  two 
years’  remuneration  may  be  ordered.  If  the  claim  is  referred  to  the  Circuit  Court  there  is 
unlimited  compensation  (for  the  effect  of  the  discrimination  for  six  years  prior  to  the 
reference  of  the  claim).  Where  the  claimant  is  not  an  employee  the  maximum  award  is 
EUR 13  000.  Interest  may  be  awarded  and  the  Circuit  Court  may  award  costs.  There  are 
provisions  for  enforcement  and  criminal  sanctions.  The  administration  of  the  Equality 
Tribunal has been transferred to the Department of Jobs, Enterprise and Employment from the 
Department of Justice and Equality. The intention of the new system is to provide speedier, 
cheaper  and  more  efficient  access  to  adjudication  in  respect  of  employment  protection 
legislation.  It  should  be  noted,  however,  that  if  a  claimant  is  successful  in  respect  of  their 
claim and also in respect of a claim of victimisation that they may obtain the full award under 
both claims. 

A prospective claimant under the Equal Status Acts 2000 to 2012 must notify the person 
alleged to have discriminated against them within two months of the discrimination. A claim 
must be referred to the Equality Tribunal within six months of the alleged prohibited conduct. 
Compensation  may  be  awarded  up  to  a  maximum  of  EUR  6 348  and/or  an  order  may  be 
issued  for  a  specified  course  of  action  to  be  taken;  however,  a  claim  on  the  gender  ground 
may also be brought to the Circuit Court which may  order unlimited compensation. Claims 
against  licensed  premises  are  brought  to  the  District  Court.  The  claim  may  be  referred  to 
mediation if the parties so agree. There are provisions for enforcement and criminal sanctions. 
Claims under the Pensions Acts 1990 to 2013 may be referred to the Equality Tribunal or 
to the Circuit Court (on the gender ground only with unlimited jurisdiction) within six months 
of the date of termination of employment. 

227  However, in Case C-104/10 Patrick Kelly v National University of Ireland (University College Dublin) [2011] 
ECR I-06813, the CJEU considered that in relation to vocational training an applicant who considers that he 
has been discriminated against is not necessarily entitled to information on the qualifications of the other 
applicants for the course. 

228  The maximum amount of compensation can only be awarded by the Equality Tribunal, even though a claimant 
may have been successful on more than one discriminatory ground. Claimants have the option of a reference to 
the Circuit Court where there may be an award of compensation for the last six years of discrimination with no 
upper financial limit. 

136  

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Any  person  may  refer  a  collective  agreement  to  the  Equality  Tribunal  where  it  is 
considered that a provision of the agreement is discriminatory. If such an agreement/provision 
is  considered  discriminatory,  it  is  null  and  void.  Collective  agreements  are  generally 
considered to be non-binding. There are certain registered employment agreements (e.g. in the 
construction industry) where the agreement is legally binding.  

The  social  partners  generally  play  a  part  in  employment  equality  law,  for  example  the 
Irish Business and Employers’ Confederation and the Irish Congress of Trade Unions work in 
partnership in respect of equality generally.  

The  Equality  Authority  has  considerable  powers  to  include  the  function  of  working 
towards  the  elimination  of  discrimination,  provides  information  on  the  maternity,  adoptive 
and  parental  leave  legislation  and  may  provide  codes  of  practice,  conduct  research  and 
information,  carry  out  equality  reviews  and  audits,  conduct  inquiries  and  may  issue  a  non-
discrimination  notice  where  it  is  satisfied  that  there  has  been  or  is  discrimination.  The 
Equality Authority may provide assistance to persons who consider that they are or have been 
discriminated  against.  The  Equality  Authority  is  the  body  charged  with  the  promotion  of 
equality.  It  is  proposed  that  this  body  will  be  amalgamated  with  the  Human  Rights 
Commission and be called the Irish Human Rights and Equality Commission. 

Any  litigation  (which  is  rare)  in  respect  of  social  welfare  is  a  reference  to  a  deciding 

officer and on appeal to an Appeals Officer and if necessary to the High Court. 

8. Overall assessment 

Overall, the EU directives have been satisfactorily transposed into Irish law and are applied 
continuously by both the Equality Tribunal and the Labour Court. It is questionable, however, 
whether  the  legislation  includes  ‘real  and  effective  compensation’  given  that  awards  are 
capped  even  where  there  is  discrimination  on  more  than  one  ground.  The  decisions  of  the 
Equality Tribunal and Labour Court are detailed and reasoned decisions. They are available 
online229 and the Equality Authority, the Equality Tribunal and the Labour Court all provide 
excellent  annual  reports  to  include  detailed  legal  sections.  There  are  considerable  delays  in 
cases  getting  a  date  for  hearing.  In  many  cases  the  delay  is  up  to  two  years  after  the 
commencement of the proceedings. In practice this can have a dissuasive effect on a claimant. 
There  has  been  a  considerable  volume  of  case  law  and  the  Equality  Tribunal,  the  Labour 
Court and the courts have applied the jurisprudence of the CJEU. 

ITALY – Simonetta Renga 

1. Implementation of central concepts 

Decree No. 198/2006, a consolidation Act called ‘Code of Equal Opportunities between Men 
and  Women’,  gathers  all  gender  anti-discriminatory  provisions  which  were  issued  to 
implement  EU  directives  or  which  already  complied  with  them.  It  regards  women’s 
participation  in  all  fields,  including  work  relationships.  The  Code  was  then  amended  by 
Decree No. 5 of 25 January 2010, implementing Recast Directive 2006/54/EC.  

In general, we can state that all notions of direct and indirect discrimination as well as the 
notion of harassment and sexual harassment almost literally reflect the respective concepts set 
by EU directives. As regards the justification clauses, the notion of indirect discrimination is 
stricter  than  EU  law:  in  fact,  neutral  criteria  which  result  in  a  disparate  impact  are  only 
legitimate if they are essential requirements for the job. 

Less favourable treatment based on a worker's rejection of or submission to harassment 
or sexual harassment shall be considered discrimination under Article 2 of the Code and less 
favourable treatment related to pregnancy, motherhood or fatherhood, also adoptive, as well 

229  See: www.employmentrights.ie. Accessed 3 June 2014. 

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as to the respective rights, is considered as direct gender discrimination. The same  goes for 
instruction to discriminate. 

Case  law  is  very  scanty  on  all  these  matters  and  generally  does  not  add  anything  to 

legislative provisions. 

Positive actions are not just permitted but also promoted and sustained by the allocation 
of  a  specific  Fund,  both  in  the  private  and  in  the  public  sector.  Further  funds  have  been 
allocated  for  the  promotion  of  female  self-employment  and  entrepreneurship  and  for  the 
reconciliation  of  working  life  with  family/private  life.  Decree  No.  5/2010  provided  that  a 
method which enables an objective and technical assessment of the plans to be submitted for 
financing  shall  accompany  the  evaluation  of  these  plans.  The  Civil  Service  plays  a  leading 
role in the enhancement of positive actions, as in this sector three-year positive action plans 
shall  be  drawn  up  regarding  jobs  and  levels  where  women  are  under-represented.  As  a 
sanction,  if  the  Civil  Service  infringes  the  obligation  to  drawn  three-year  action  plans  the 
Civil Service is prohibited from recruiting new personnel.  

A quota system was introduced by Act No. 120 of 12 July 2011 for the appointment of 
managing  directors  and  auditors  of  listed  companies  and  state  subsidiary  companies,  where 
each  sex  cannot  be  represented  in  a  proportion  lower  than  one  third.  This  rule  shall  be 
enforced for three periods of tenure of directors and auditors. The sanction procedure in the 
event of infringement of the rule is very gradual and only after two warnings of the Consob 
(the National Securities and Exchange Commission), which is also charged with monitoring 
compliance with the gender balance principle, can the penalty of dissolution of the Company 
Board be applied. As regards state subsidiary companies not quoted in the regulated market, 
the same principles are enforceable.  

Furthermore,  Act  No.  215  of  23  November  2012  introduced  new  regulations  aimed  at 
achieving gender equality in politics and in hiring procedures in public administration. One of 
the main interventions regards the statutes of municipalities and provinces, which must now 
provide  regulations  to  ensure  (and  not  only  ‘promote’  as  under  previous  legislation)  the 
representation of both sexes in government bodies and in other corporate bodies (not elective 
ones) of the municipality or the province or in businesses and institutions depending on them. 
Moreover,  it  is  provided  that  the  regulations  governing  the  election  of  municipality  and 
province councils and governing the appointment of the respective local government bodies 
must  also  respect  the  principle  of  gender  equality  and  guarantee  the  representation  of  both 
sexes. Act No. 65/2014 recently modified previous regulations so as to ensure a better gender 
balance  in  the  election  of  the  Italian  members  of  the  European  Parliament.  Under  these 
regulations, not more than 50 % of the candidates on each list can be of the same sex; the first 
and  the  second  candidates  on  the  list  cannot  be  of  the  same  sex;  in  case  of  two  or  three 
preferential votes, they must be given to candidates of different sex, and if not, the second and 
the  third  preferential  vote  must  be  cancelled.  Finally,  gender  balance  in  politics  is  also 
supported  by  Act  No.  13/2014,  which  recently  provided  for  a  reduction  of  parties’  public 
financing if they do not fulfil gender balance requirements regarding the list of candidates for 
political elections. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
Legislation regarding equal pay applies to all employees in the private as well as in the public 
sector.  Article  37 of the  Constitution states that  a  female  worker  shall have  the  same  rights 
and,  for  equal  work,  the  same  remuneration  as  a  male  worker.  This  constitutional  principle 
was  reworded  and  clarified  by  an  ordinary  provision  stating  that  a  female  worker  shall  be 
entitled to the same remuneration as a male worker where the services required are equal or of 
equal  value,  and  that  occupational  classification  systems  applied  for  the  purpose  of 
determining remuneration shall adopt common criteria for men and women.  

No  justifications  for  differences  in  pay  are  provided  by  Italian  legislation,  save  those 
allowed  on  the  ground  of  the  general  notion  of  indirect  discrimination,  such  as  a  premium 

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awarded by the employer to salespeople who are available for frequent business trips where 
workers obtaining it are mainly men, but mobility is an essential requirement for the job.  

The concept of pay is not defined by the law, but has been widely construed by  Italian 
courts, on the basis of collective agreements, as including any economic benefit in cash or in 
kind  directly  and  indirectly  paid  on  the  ground  of  the  employment  relationship.  Under 
industry-wide  agreements,  different  job  classifications  on  the  ground  of  sex  have  been 
abolished from the 1960s onwards. However, indirect discrimination could hide in additional 
wages bargained at the local or enterprise level and in the so-called superminimo individuale 
(possible  sums  granted  on  the  basis  of  individual  bargaining):  the  partial  reversal  of  the 
burden  of  proof  could  be  an  important  measure  to  disclose  this,  but  no  recent  and  specific 
studies or case law can be recorded on the matter. 

The implementation of EU directives is, on the whole, satisfactory.  

2.2. Access to work and working conditions 
As  regards  the  personal  scope,  the  Code  of  Equal  Opportunities  provides  a  ban  on  gender 
discrimination which applies to all persons employed in any sector (both private and public, 
including  the  military  forces)  and  irrespective  of  the  size  of  the  employer.  On  this  point 
implementation is fully satisfactory, although it does not go further than EU law. 

As  regards  the  substantive  scope,  the  ban  on  discrimination  covers  all  stages  of  the 
employment  relationship,  i.e.  access  to  work,  for  the  employed  and  self-employed,  with  a 
wide meaning, including vocational guidance, training, further training or refresher courses, 
as well as membership of and involvement in an organisation of workers or employers, or any 
organisation whose members carry out a particular profession, including the benefits provided 
by such organisations; working conditions, including the assignment of duties, promotion and 
remuneration; termination of employment; social security benefits, including retirement age. 

The law does not authorise any general a priori exclusion of women. It only allows two 
exceptions:  a  gender  requirement  in  hiring  in  artistic  and  fashion  activities  and  in  the 
pursuance of public performances, when such a requirement is essential to the nature of the 
work/job;  and  specific  exceptions,  provided  by  collective  agreements,  to  the  prohibition  on 
discrimination in access to work for women in cases of particularly heavy work.  

2.3. Occupational pension schemes 
In this area, the Government has implemented the Recast Directive (Decree No. 5/2010). This 
piece  of  legislation,  however,  does  not  include  any  provisions  on  the  personal and  material 
scope  of  the  principle  of  non-discrimination,  on  its  implementation  as  regards  self-
employment or on retroactive effects of the measures introduced. In particular, in relation to 
the material scope, the application of the principle of non-discrimination to public servants’ 
benefits paid based on the employment relationship (Article 7.2 of Directive 2006/54/EC) is 
not  mentioned  at  all.  It  also  allows  the  setting  of  different  levels  of  benefits  insofar  as  this 
may  be  necessary  to take account  of  actuarial calculation  factors,  which  differ according  to 
sex.  Among  the  actuarial  factors,  the  higher  life  expectancy  of  women  is  often  taken  into 
consideration  by  occupational  funds.  Therefore,  women’s  pension  can  be  lower  or  their 
contribution rate higher than those provided for men. Last but not least, these provisions fail 
to  implement  the  Recast  Directive  as  regards  pensionable  age,  which  remains  different  for 
men  and  women.  Indeed,  the  occupational  old-age  pension  is  awarded  on  reaching  the 
pensionable  age  as  established  in  the  statutory  system,  where,  at  present  and  until  2018, 
women’s pensionable age is lower than that for men. Women can, however, carry on working 
until the pensionable age set for men: for this purpose, the protection against unfair dismissal 
has been extended to the extra period during which they can choose to work. In this respect, 
therefore, men are subjected to more disadvantageous treatment than women, as they cannot 
anticipate their pension and have a fixed pensionable age set at 66.  

On  the  other  hand,  in the civil  servants sector, following  the  Court  of Justice decision, 
Act 3.8.2009, No. 102, as modified by Act No. 122/2010, has equalised the pensionable age 
of men and women at 65.  

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  More  in  general,  the  regime  of  the  supplementary  funds  makes  no  provision  for  the 
recovery  of  ‘fictional  contributions’230  during  maternity  leave  or  during  leave  for  serious 
family  reasons:  the  funds’  regulations  are  allowed  to  omit  provisions  such  as  those  on 
notional contributions, or on redemption (e.g.: recover the contributions by paying them). In 
the  case  of  maternity,  many  fund  regulations  provide  for  a  reduced  rate  of  notional 
contributions,  i.e.  only  the  contributions  corresponding  to  the  amount  of  the  maternity 
allowance are credited.  

3. Pregnancy and maternity protection, parental leave and adoption leave 

Italian legislation, consolidated by Decree No. 151/2001, goes far beyond the requirements of 
the EU directives. It provides for a compulsory maternity leave of five months. The Decree 
also  provides  for:  a  10-month  parental  leave  (continuous  or  in  various  periods)  to  be  taken 
until the child reaches the age of 8, which is paid for 6 months provided that the child is not 
older  than  3;  time  off  in  connection  with  childcare;  and  leave  for  workers  taking  care  of 
disabled  persons.  According  to  Article  4  of  Act  No.  92/2012  (temporarily,  from  2012  to 
2015),  fathers  are  also  entitled  to  three  days  of  paternity  leave  in  the  first  five  months 
following the child’s birth, of which two days can be an alternative for the mother and one 
day is compulsory for the father. Many other provisions extend some of the mother’s rights to 
the  father,  e.g.  the  mother’s  compulsory  leave  in  special  cases  and  remunerated  time  off  to 
take care of the child. As a measure to encourage fathers to take parental leave (which is still 
quite  unusual  in  Italy),  the  maximum  total  length  of  the  leave  awarded  per  child  has  been 
increased from ten to eleven months if the father takes it for at least three months. The most 
important  care  leaves  are  paid  (80  %  of  full  salary  for  compulsory  leave,  and  30  %  of  full 
salary for parental leave) and can be used by the hour or as a time credit system (according to 
criteria  to  be  established  by  collective  agreements);  the  institution  of  fictional  prevents 
workers  from  suffering  disadvantages  in  the  future  enjoyment  of  pension  benefits  due  to 
absence from work for caring duties. At the end of the leave, workers have the right to return 
to  the  same  workplace  (or,  if  not  possible,  to  a  workplace  in  the  same  municipality  as  the 
previous one) and to the same job or, if that is not possible, to an equivalent job. Furthermore, 
a  woman  on  maternity  leave  has  the  right  to  benefit  at  the  end  of  this  period  from  any 
improvement  in  working  conditions  to  which  she  would  have  been  entitled  during  her 
absence. 

As regards dismissal, it must also be noted that the protection afforded is much stronger 
than required by EU legislation, as it is ensured purely on grounds of pregnancy, regardless of 
whether  the  employer  has  been  informed  or  not.  Moreover,  protection  is  granted  during 
pregnancy  and  maternity  leave  and  for  a  period  of  12  months  following  childbirth. 
Furthermore,  Act  No.  92/2012  extended  the  period  during  which  a  notice  of  mutual 
termination of the employment contract or resignation of working mothers shall be signed in 
front of an inspector of the Minister of Labour. This period now starts at the beginning of the 
pregnancy  and  ends  when  the  child  reaches  the  age  of  three.  The  same  rule  applies  to  the 
father.  Moreover,  this  Act  re-introduced  a  similar  mechanism  of  validation  of  all  workers’ 
resignation or mutual termination of employment contract, so as to avoid the practice of blank 
resignation/mutual  termination,  which  is  also  punished  by  an  administrative  and,  in  certain 
circumstances, penal sanction. Act No. 99/2013 extended the provisions on white resignations 
to  some  atypical  forms  of  self-employment  contracts,  such  as  the  so-called  contracts  on 
projects and joint ventures (associazione in partecipazione). All these provisions also apply to 
national and international adoption and official custody of a child. 

230  Those are contributions which are credited without cost to the employee for periods during which the worker 
has not worked (for example in  case of illness or maternity)  and therefore he has received benefit payments 
from the national social security system (INPS).  

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4. Statutory schemes of social security 

The  directives  on  statutory  schemes  of  social  security  have  never  been  specifically 
implemented. 

However, the contributory pension system does not reveal discriminatory features in the 

light of Directive 79/7/EEC.  

Survivors’ provisions are part of the old-age pension system and as such fall within the 
objective scope of the Directive. The Code of Equal Opportunities lays down the principle of 
gender equality as regards survivors’ benefits. 

However, the latest legislation on pensions is far from woman-friendly. Indeed, Act No. 
214/2011 provides for an increase of the minimum contribution condition from 5 to 20 years: 
if the claimant has less than 20 years’ contributions, the pension will be paid from the age of 
70.  Moreover,  it  introduced  a  new  minimum  benefit  amount  condition  according  to  which 
pensions will be paid at 70 rather than at 66 (67 by 2021) when their amount is less than EUR 
643  a  month.  The  relevant  conditions  are  particularly  difficult  to  fulfil  by  those  who  do 
atypical work, i.e. intermittent, temporary, occasional and part-time work, which is often done 
by women. This means that many women may risk receiving their pension only from the age 
of 70. 

The exclusions in Article 7(1) of the Directive have been used in the pension system in 
relation to  both the  pensionable  age  and the advantages  as  regards  old-age  pensions  for  the 
purpose of child-rearing. 

As  regards  pensionable  age,  Act  No.  214/2011  set  the  pensionable  age  in  the  public 
sector  at  66  for  men  and  women.  In  the  private  sector,  the  same  provision  fixed  the 
pensionable age at 66 for men by 2012; women's pensionable age will be gradually increased 
to  66  in  2018.  All  employees,  however,  men  and  women  in  the  private  and  in  the  public 
sector, will have a pensionable age of 67 by 2021. 

Advantages  as  regards  old-age  pensions  for  the  purpose  of  child-rearing  are  provided 
under the new contribution system for the benefit of women. More favourable coefficients of 
transformation  (according  to  which  pensions  are  calculated)  are  fixed  for  maternity.  Then, 
again  in  relation  to  maternity,  a  reduction  in the  age of  retirement  of  4  months per  child is 
granted, with a maximum limit of 12 months. As an alternative to this, it is also provided that 
women with children are able to receive a retirement pension subject to reduced conditions. 

Then,  as  regards  the  exclusions  in  Article  3(2)  of  the  Directive,  the  Italian  family 
allowance falls under this clause. The scheme reveals discriminatory features as regards part-
time workers working less than 24 hours a week and vertical part-timers, who are entitled to 
benefits in proportion to the number of days spent at work, independently from the number of 
hours worked each day. 

It  must  also  be  pointed  out  here  that  vertical  part-time  workers  cannot  benefit  from 
unemployment  allowances  in  relation  to  the  periods  of  suspended  work,  on  the  assumption 
that  the  inactivity  during  those  periods  is  voluntary,  as  it  is  part  of  the  working  time 
agreement which exists between the employer and the vertical part-timer. 

5. Self-employed persons 

The  actual  impact  of  Directive  86/613/EEC,  and  later  of  Directive  2010/41,  on  national 
regulations  has  been  very weak,  also  because  the regulations  on  access  to  professions, self-
employment, the establishment of companies, small entrepreneurs (including farmers), family 
enterprises,  agrarian families  and  conjugal  enterprises  were  not  discriminatory  and  they  did 
not  require  a  significant  intervention.  Minor  amendments  to  both  the  Code  of  Equal 
Opportunities  and  the  Code  on  the  Protection  of  Motherhood  and  Fatherhood  recently 
clarified  that  the  ban  on  discrimination  also  applies  to  entrepreneurship,  and  extended  the 
right to maternity allowance to self-employed fisherwomen in small-scale coastal and inland 
fishing. 

On  the  whole  the  Code  of  Equal  Opportunities  between  Men  and  Women  fully 
implements  the  EU  principle  of  substantial  equality  in  the  field  of  entrepreneurial  activity, 

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141 

 
 
 
 
 
 
 
 
 
 
 
 
providing for the promotion of female self-employment through preferential measures meant 
to  favour  access  to  banking  credits  and  public  funds,  to  improve  professional  training  and 
qualifications  for  women  in  this  field,  and  to  promote  the  presence  of  businesses  owned  or 
managed  by  a  large  percentage  of  women  in  the  most  innovative  sections  of  different 
production sectors.  

In  relation  to  social  security  provisions,  the  coverage  in  terms  of  social  protection  is 
provided  by  specific  public  schemes  concerning  the  commercial,  agricultural  and  craft 
sectors. 

As for maternity rights entitlements, a maternity allowance is provided for mothers who 
are  not  covered  by  the  social  security  system  and  earn  less  than  a  certain  amount.  Self-
employed women are entitled to a maternity allowance, independent of their decision whether 
or not to suspend their work activities. Workers on projects have a right to suspend the work 
relationship. Furthermore, three months of remunerated parental leave are granted to women 
performing the liberal professions and to self-employed women in the sectors of commerce, 
handicraft, agriculture, and in the other sectors mentioned above.  

6. Goods and services 

Directive 2004/113/EC was implemented by Decree No. 196/2007, which adds ten articles to 
the Code of Equal Opportunities. On the whole, it satisfies EU law requirements, but does not 
go  any  further,  as  it  literally  reflects  the  text  of  the  Directive,  including  provisions  on  its 
substantive scope and on the exceptions allowed.  

There  is  no  legislation  implementing  the  results  of  the  Test-Achats  case,231  and  neither 
are there any projects for new legislation on the issue. The insurance companies seem to be 
relying on the EU Commission guidelines. The ANIA (association of insurance companies) 
regards  the  guidelines  as  a  soft-law  tool  for  the  interpretation  of  the  CJEU  decision.  The 
insurance company market, however, regards the guidelines as non-exhaustive in relation to 
Italian legislation and believes that some issues need further clarification.  

7. Enforcement and compliance aspects 

The Code of Equal Opportunities provides protection against victimisation of employees and 
all  other  persons  who  are  victim  of  detrimental  treatment  by  their  employer  in  reaction  to 
requiring compliance with the principle of equal treatment between men and women. 

The  provision  on  the  partial  reversal  of  the  burden  of  proof  can  be  deemed  to  be  a 
satisfactory  implementation  of  Directive  97/80/EC,  and  it  has  been  used  by  the  scanty  case 
law  on  indirect  discrimination.  As  regards  the  use  of  quantitative/statistical  data,  the  Code 
goes further than EU law as it requires companies with more than one hundred employees to 
draw  up  every  two  years  (and  to  deliver  to  the  company  union  representatives  and  to  the 
Regional Equality Advisers) reports on the workers’ situation (male and female), as regards 
e.g.  recruitment,  professional  training,  career  opportunities,  remuneration,  dismissal  and 
retirement. 
  Minor  criminal  sanctions  can  be  imposed  for  the  infringement  of  the  prohibition  on 
discrimination in the access to work and working conditions and administrative sanctions can 
be  imposed  for  the  protection  of  motherhood  and  fatherhood.  Positive  actions  are  also 
provided as remedies against collective discrimination ascertained by the court. Revocation of 
public benefits or even exclusion, for a certain period, from any further award of financial or 
credit inducements or from any public tender can also be imposed as penalties in the case of 
ascertained direct or indirect discrimination. The general remedy of nullity is enforceable for 
all discriminatory acts. Moreover, the special remedy (reinstatement) provided by Article 18 
of the Worker’s Statute is enforceable in the event of dismissal on the ground of pregnancy or 

231  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

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marriage.  Compensation  for  economic  damage  can  be  awarded  following  the  general 
principles  on  contractual  and  extra-contractual  liability,  without  upper  limits.  This  piece  of 
national legislation can reasonably be considered to be in line with the Directive. 

Cases  on  equality  rights  are  judged  under  procedures  for  labour  disputes.  Ordinary  or 
special urgent legal proceedings can be brought to court, according to different circumstances. 
Italian legislation empowers Equality Advisors to assist victims of discrimination. They 
can act directly in their name in cases of collective discrimination, even where the employees 
affected  by  the  discrimination  are  not  immediately  identifiable.  Regional  and  Provincial 
Advisors can also proceed when delegated by an individual employee or can intervene in the 
process initiated by the latter. Also associations and organisations promoting respect for equal 
treatment between male and female workers are entitled to act on the workers’ behalf.  

As  regards  the  functions  required  by  EU  law,  a  central  role  is  played  by  the  Net  of 
Equality  Advisors  and  the  Equal  Opportunities  National  Committee  (EONC)  set  up  by  the 
Labour Ministry Central Offices. The EONC is entrusted with the task of stimulating social 
dialogue  and  the  dialogue  with  non-governmental  organisations  on  equality  issues  and  of 
exchanging information with the EU bodies that operate in the field of equal treatment. New 
tasks are entrusted to the National Equality Advisor as well, which shall conduct independent 
surveys,  publish  independent  reports  and  make  recommendations  on  the  implementation  of 
gender equality. The law states that equality bodies shall perform independent activities, but it 
is up to the Minister of Labour to set the conditions for the organisation and the functioning of 
the Equality Advisors’ staff.  

8. Overall assessment 

As regards labour law, several legislative interventions in the last twenty years have created, 
on  the  whole,  a  good  level  of  implementation  of  EU  directives.  Sometimes  domestic 
legislation has gone further than EU law. This is the case with regulations on maternity and 
paternity  protection  and  leave,  positive  action,  gender  data  on  personnel  in  businesses 
employing  more  than  100  workers,  justification  clauses  for  indirect  discrimination,  and  the 
promotion of female self-employment.  

The  main  remarkable  gap  that  may  be  detected  is  found  in  the  functions  of  bodies 
entrusted with the promotion of respect for the principle of equal treatment, the conformity of 
which relies on the concept of independence adopted at EU level.  
  More  in  general,  the  analysis  of  the  recent  national  legislation  implementing  EU  law 
shows  a  tendency  to  merely  transpose  it  by  verbatim  repetition  of  the  EU  Directive,  which 
does not ensure the necessary coordination with other provisions. 

As regards social security legislation, despite the fact that the directives have never been 
specifically  implemented,  domestic  legislation  is,  on  the  whole,  relatively  well  in  line  with 
EU law.  

LATVIA – Kristīne Dupate 

1. Implementation of central concepts 

The  CJEU  has  held  that  discrimination  can  arise  either  through  the  application  of  different 
rules  to  comparable  situations  or  through  the  application  of  the  same  rules  to  different 
situations.232  The  Constitutional  Court  of  Latvia  has  adopted  the  same  legal  doctrine  to 
interpret  Article  91  of  the  Constitution  of  Latvia  which  contains  the  general  principle  of 
equality.233 However, the principle of non-discrimination in the majority of Latvian normative 

232  Case C-279/93 Finanzamt Köln-Altstadt v Roland Schumacker, [1995] ECR I-00225, Paragraph 30. 
233  See, for example, the decision of the Constitutional Court of Latvia in Case No.2000-07-0409, OG No. 4, 

4 April 2001, accessed 29 May 2013. 

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acts is formulated as ‘prohibition of differential treatment’ instead of the term ‘prohibition of 
discrimination’.  This  may  result  in  an  inadequate  application  of  EU  law,  for  example  by 
excluding  discrimination  which  arises  due  to  the  equal  treatment  of  persons  in  different 
situations,  by  excluding  exceptions  provided  in  the  framework  of  the  principle  of  non-
discrimination or in the form of formally incorrect findings by national courts such as finding 
that discrimination is justified because the relevant persons were not in similar situations.234 
In  that  sense,  Latvian  courts  approach  the  differential  treatment  of  persons  as  a  ground  for 
justification, rather  than the  rule that  different treatment  of  different situations does  not fall 
legislation  provides  an 
under the scope of the prohibition of discrimination. 
identical definition of direct discrimination as the one in EU law. Since 2010 the definition of 
direct discrimination explicitly prohibits less favourable treatment on grounds of pregnancy, 
maternity  and  paternity  leave  in  almost  all  relevant  fields235  except  in  the  field  of  statutory 
social security.236  

National 

The definition of indirect discrimination is implemented correctly in all fields, except in 
the  field  of  statutory  social  security,  where  the  definition  still  requires  comparable 
situations.237  Such  incompatibility  in  the  Labour  Law  was  only  corrected  at  the  end  of 
2010.238 

Latvian law does not provides for any kind of positive action,239 except one ‘soft quota’ 
provision  requiring  aiming  for  gender  balance  when  electing  judges  for  the  self-governing 
bodies of the Supreme Court.240 Such provision was inserted to favour male judges, because 
since  the  re-establishment  of  the  Supreme  Court  after  Soviet  occupation  there  has  always 
been more female than male judges.241 

The  prohibition  of  harassment,  sexual  harassment  and  instruction  to  discriminate  is 
implemented in all fields242 but one – in the field of statutory social security individuals are 
only afforded protection against harassment.243 

234  Decision of Riga City Vidzemes District court of 17 July 2006 in Case No. C 30-1667/9-2006.g. (not 

published). 

235  Regarding employment: the Labour Law (Darba likums), OG No. 105 6 July 2001, respective amendments OG 
No. 47, 25 March 2010; regarding employment services: the Law on Support of Unemployed Persons and 
Jobseekers (Bezdarbnieku un darba meklētāju atbalsta likums), OG No. 80, 29 May 2002, respective 
amendments OG No. 51/52, 31 March 2010; regarding self-employment: the Law on Prohibition of 
Discrimination against Natural Persons – Performers of Economic Activities (Fizisko personu – saimnieciskās 
darbības veicēju – diskriminācijas aizlieguma likums), OG No. 199, 19 December 2012, repealing previous 
law, OG No. 89, 9 June 2009, referring to definitions provided by the Law on the Protection of Consumer 
Rights; regarding education(vocational training): Education Law (Izglītības likums), OG No. 343/344, 
17 November 1998, respective amendments OG No. 47, 24 March 2010, referring to definitions provided by 
the Law on the Protection of Consumer Rights; regarding access to and supply of goods and services: the Law 
on the Protection of Consumer Rights (Patērētāju tiesību aizsardzības likums), OG No. 104/105, 1 April 1999, 
respective amendments OG No. 104, 9 July 2008. 

236  The Law on Social Security (Likums ‘Par sociālo drošību’), OG No. 144, 21 September 1995. 
237  The Law on Social Security (Likums ‘Par sociālo drošību’), OG No. 144, 21 September 1995. 
238  Darba likums, OG No. 105 6 July 2001, respective amendments OG No. 47, 25 March 2010. 
239  The author leaves undiscussed any provisions of secondary national law in the field of vocational training for 
unemployed persons, allowing them to participate in special training programmes for special groups (e.g. 
parents after long childcare leave, disabled persons) organised by the State Employment Agency and funded by 
the European Social Fund, because they have an ad hoc nature. 

240  The Law on Judicial Power (Likums ‘Par tiesu varu’), OG No. 1, 14 January 1993, respective amendments OG 

No. 160, 7 October 2005.  

241  The composition of the Supreme Court on January 2013: 27 females and 23 males, available on 

http://www.at.gov.lv/lv/about/judges/, accessed 29 May 2013. 

242  Article 29(4) and (7) of the Labour Law (Darba likums), OG No. 105 6 July 2001; Article 4(3) and (4) of the 
Law on Prohibition of Discrimination against Natural Persons – Performers of Economic Activities (Fizisko 
personu – saimnieciskās darbības veicēju – diskriminācijas aizlieguma likums), OG No. 199, 19 December 
2012; Article 31(7) and (8) of the Law on the Protection of Consumer Rights (Patērētāju tiesību aizsardzības 
likums), OG No. 104/105, 1 April 1999; Article 21(5) and (6) of the Law on Support of Unemployed Persons 
and Jobseekers (Bezdarbnieku un darba meklētāju atbalsta likums), OG No. 80, 29 May 2002; Article 31(8) of 
the Education Law (Izglītības likums), OG No. 343/344, 17 November 1998, referring to the definitions 
provided by the Law on the Protection of Consumer Rights. 

243  The Law on Statutory Social Security, Article 21(5). 

144  

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It  follows  that  Latvia  in  general  has  implemented  the  main  concepts  of  EU  gender 
equality  law,  but  with  some  gaps  in  the  field  of  statutory  social  security.  Nevertheless,  the 
scope of the prohibition of discrimination on the grounds of sex is wider under Latvian law 
than under EU law as sex discrimination is prohibited in the entire system of education244 and 
in advertising.245 

2. Equal pay and equal treatment at work  

The main legal instrument in the field of employment is the Labour Law, which applies to all 
workers employed in the private and the public sectors. Although it is not applicable to public 
officials, civil servants and some other categories of the public service, the laws which cover 
the  above  contain  provisions  for  the  application  of  the  norms  on  non-discrimination  in  the 
Labour  Law.246  Therefore,  the  non-discrimination  provisions  of  the  Labour  Law  are 
applicable  to  employees  of  both  sectors  as  well  as  civil  servants  and  officers  of  the  public 
sector.  

The gender equality provisions of the Labour Law are not applicable to judges and public 
prosecutors. This may be explained by a failure of the legislator to identify all laws regulating 
special  service  at  the  time  of  initial  implementation  of  EU  gender  equality  law.  As  a 
judges247  and  public  prosecutors248  are  still  only  protected  against 
consequence, 
discrimination with regard to access to a post.  

2.1. Equal pay 
The  concept  of  equal  pay  is  provided  by  Article  60  of  the  Labour  Law.  Article  60(1)  lays 
down the general obligation of an employer ‘to define equal pay for men and women for the 
same work or work of equal value’. This is the only provision.  

There is no explicit definition of ‘equal pay’ provided by the law. However, Article 59 of 
the  Labour  Law  does  define  ‘pay’  as  regularly  paid  remuneration  for  work,  which  also 
includes bonuses and other kinds of remuneration in connection with employment as provided 
by  normative  acts,249  collective  agreements  or  employment  agreements.  A  decision  of  the 
Supreme Court in 2010 demonstrates awareness of the different definitions of ‘pay’ under EU 
and national law.250 In particular, the Supreme Court recognised that compensation for unfair 
dismissal is to be considered as a component of ‘pay’ within the meaning of equal pay on the 
basis of the decision of the CJEU in Seymour-Smith.251 In addition the Supreme Court already 
in  two  decisions  interpreted  the  concept  of  pay  in  matters  falling  within  the  competence  of 
national  law  in  accordance  with  the  CJEU’s  decisions  on  equal  pay.252  It  follows  that  the 
Court intends to unify the content of the concept of ‘pay’ under EU and national law.  

244  The Education Law (Izglītības likums), OG No. 343/344, 17 November 1998, respective amendments OG 

No. 47, 24 March 2010. 

245  The Advertisement Law (Reklāmas likums), OG No. 7, 10 January 2000. 
246  In particular, Article 2(4) of the Law on the State Civil Service (Valsts civildienesta likums), OG No. 22 
September 2000; Article 3(2) of the Law on Service of Persons with Special Service Ranks at System of 
Interior Affairs and Imprisonment Office (Iekšlietu ministrijas sistēmas iestāžu un Ieslodzījuma vietu pārvaldes 
amatpersonu ar speciālajām dienesta pakāpēm dienesta gaitas likums), OG No. 101, 30 June 2006; Article 
3(2) of the Law on Custody Courts (Bāriņtiesu likums), OG No. 107, 7 July 2006; Article 6(8) of the Law on 
the National Guard of the Republic of Latvia (Latvijas Republikas Zemessardzes likums), OG No. 82, 26 May 
2010; Article 12(2) of the Law on Military Service (Militārā dienesta likums), OG No. 91, 18 June 2002.  

247  Article 51(2) of the Law on Judicial Power (Likums ‘Par tiesu varu’), OG No. 1, 14 January 1993. 
248  Article 331(1) of the Prosecutors’ Office Law (Prokuratūras likums), OG No. 65, 2 June 1994. 
249  Normative or legislative acts may also include regulations of the Cabinet of Ministers and binding regulations 

of the municipalities. 

250  Decision of the Supreme Court (15 December 2010) in Case No.SKC-694/2010, available in Latvian on 

http://www.at.gov.lv/files/archive/department1/2010/694-10.pdf, accessed 28 May 2013. 

251  Case C-167/97 Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez 

[1999] ECR I-00623. 

252  Decision of the Supreme Court (19 December 2012) in Case no. SKC-1979/2012, available in Latvian at: 

http://www.at.gov.lv/lv/info/archive/department1/2012/, accessed29 May 2014; Decision of the Supreme Court 
(27 March 2014) in case no.SKC-1683/2014, not yet published. 

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There are no legislative acts to define such concepts as ‘equal work’ and ‘work of equal 
value’ and no case law dealing with issues such as justifications for differences in pay. The 
current legal regulation on equal pay is inefficient because it does not specify more detailed 
obligations  of  the  employer.  Such  conclusion  is  based  on  the  fact  that  the  pay  gap  has  not 
decreased  during  recent  years253  while  only  few  cases  have  been  brought  before  Latvian 
courts on equal pay for the same work. Moreover, the lack of detail obligations with regard to 
equal pay has led to a breach of such principle even by the legislator. In particular in regards 
to school teachers, the majority of whom are women. They were excluded from the scope of 
the  Law  on  Remuneration  of  State  Officials  and  Employees  of  the  State  and  Municipal 
Institutions254 adopted in 2009 with a view to establish a uniform and objective remuneration 
system in public sector. According to unofficial information, the reason for this exclusion was 
a  lack  of  budget  resources,  because  there  are  a  considerable  number  of  school  teachers  in 
Latvia.  However,  it  is  known  that  the  CJEU  does  not  allow  justifying  indirect  pay 
discrimination on the basis of budgetary considerations.255  

2.2. Access to work and working conditions 
Article  29(1)  of  the  Labour  Law  prohibits  discrimination  in  all  stages  of  employment: 
recruitment, working conditions and dismissal. A person may claim discriminatory refusal to 
employ on the grounds of Article 34 of the Labour Law, discriminatory working conditions 
on the grounds of Article 95 of the Labour Law, discriminatory dismissal on the grounds of 
Article  29(1)  and  discriminatory  dismissal  during  a  probationary  period  on  the  grounds  of 
Article  48  of  the  Labour  Law.  Additionally,  in  2010  the  legislator  amended  the  Law  on 
Support of Unemployed Persons and Jobseekers,256 which now provides for a prohibition of 
discrimination  with  regard  to  access  to  employment  services  and  training  provided  by  the 
State Employment Agency. Protection against discrimination in access to employment from 
the  perspective  of  private  providers  of  recruitment  services  is  stipulated  by  Cabinet  of 
Ministers’ Regulation No. 458.257 The right to equal access to a profession for self-employed 
persons  and  non-discrimination  with  regard  to  their  access  to  and  supply  of  goods  and 
services necessary for the performance of the commercial activity is provided by the Law on 
Prohibition of Discrimination against Natural Persons – Performers of Economic Activities.258  
Latvian law contains only one exception: The Labour Law allows differential treatment 
where  the  sex  of  a  person  constitutes  a  genuine  and  determining  occupational  requirement. 
Consequently, in Latvia it is for employers to decide if such exception is applicable in each 
particular case. 

2.3. Occupational pension schemes 
The main act regulating occupational pension security schemes is the Law on Private Pension 
Funds. The only provision that relates to gender equality is Article 11, which provides that an 
employer  may  only  apply  objective  criteria  (such  as  profession,  position  and  seniority) 
regarding  the  participation  in  and  amount  of  contributions  to  private  pension  funds.  The 

253  According to data of the Central Statistical Bureau of Latvia, women on average earned 14 % less in 2006 and 

in 2010 15 % less than men, available at: http://data.csb.gov.lv/DATABASE/Iedzsoc/Ikgad%C4%93
jie%20statistikas%20dati/Darba%20samaksas%20strukt%C5%ABra/Darba%20samaksas%20strukt%C5%ABr
a.asp; and http://data.csb.gov.lv/DATABASE/Iedzsoc/Ikgad%C4%93jie%20statistikas%20dati/Darba
%20samaksas%20strukt%C5%ABra%202010/Darba%20samaksas%20strukt%C5%ABra%202010.asp, both 
accessed 30 May 2014. 

254  OG No. 199, 18 December 2009, Article 2(3). 
255  Joined Cases C-4/02 Hilde Schönheit v Stadt Frankfurt am Main and C-5/02 Silvia Becker v Land Hessen 

[2003] ECR I-12575. 

256  OG No. 80, 29 May 2002, respective amendments OG No. 51/52, 31 March 2010. 
257  The Regulation of the Cabinet of Ministers No. 458 ‘The procedure on licensing and supervision of merchants 
– providers of recruitment services’ (Ministru Kabineta 2007.gada 3.jūlija noteikumi Nr.458 “Komersantu – 
darbiekārtošanas pakalpojumu sniedzēju – licencēšanas un uzraudzības kārtība”), OG No. 108, 6 July 2007. 

258  Fizisko personu – saimnieciskās darbības veicēju – diskriminācijas aizlieguma likums, OG No. 199, 

19 December 2012. 

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participation in private occupational social security schemes is not widespread among Latvian 
employers.  

In addition to pensions provided by private pension funds, there are several categories of 
persons employed in the public sector who are entitled to long-term service pensions: persons 
in  military  service, a  certain  category  of  persons  serving  at  the Ministry  of  Interior  Affairs, 
public  prosecutors,  judges  and  artists  employed  by  the  State  or  a  municipality.259  Although 
this kind of pension is fully paid from the state budget, it still complies with all three criteria 
established  by  the  CJEU  in  Niemi,260  thus  falling  within  the  scope  of  Article  157  TFEU. 
Usually,  the  persons  in  the  categories  listed  above  are  entitled  to  early  retirement,  and 
therefore,  until  they  reach  the  statutory  pensionable  age,  this  special  pension  serves  as  a 
bridging pension. 

In  general  Latvia  has  complied  with  its  obligations  regarding  implementation  of  EU 
gender  equality  law  concerning  working  conditions,  except  regarding  equal  pay,  where 
implementation measures are not satisfactory. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The provisions of Directive 92/85/EC and Directive 2010/18/EU with regard to employment 
rights have been implemented by the Labour Law. Under Latvian labour law provisions, the 
maternity period lasts from the moment of the notification of pregnancy by a certificate issued 
by  a  doctor  until  one  year  after  childbirth  or  during  the  entire  period  of  breastfeeding.  The 
Amendments  to  the  Labour  Law  currently  in  the  process  of  being  adopted  in  Parliament 
envisage a restriction of the period in which a woman can have special maternity protection. 
In  particular,  it  regards  the  currently  unrestricted  breastfeeding  period,  which  will  be 
restricted to the child reaching the age of two.261 In the context of sex discrimination law, the 
Supreme  Court  has  followed  EU  law  and  ruled  that  official  notification  of  pregnancy  is 
irrelevant if an employer knew about the worker’s pregnancy.262 

In addition to the requirements of Directive 92/85/EC the Labour Law provides that an 
employer cannot send a worker on a business trip or compel her to work overtime or at night 
during the maternity period unless she agrees to this in writing.263 The Labour Law prohibits 
the dismissal of the worker during the maternity period, except in cases strictly defined by the 
law.264  The  Labour  Law  also  gives  women  the  right  to  insist  on  part-time  work  during  the 
maternity period.265 

Upon  return  to  work  after  pregnancy,  maternity,  paternity  and  childcare  leave  an 
employer is obliged to provide the same or equivalent work on the same working conditions. 

259  Law on Pensions for the Military (Militārpersonu izdienas pensiju likums) OG No. 86, 1 April 1998; Law on 
Pensions for Employees of the System of the Ministry of Interior Affairs with Special Ranks (Par izdienas 
pensijām Iekšlietu ministrijas sistēmas darbiniekiem ar speciālajām dienesta pakāpēm), OG No. 100/101, 16 
April 1998; Law on Pensions for Prosecutors (Prokuroru izdienas pensiju likums) OG No. 181, 3 June 1999; 
Law on Long-Term Service Pensions for Judges (Tiesnešu izdienas pensiju likums) OG No. 7 July 2006; Law 
on Pension for Artists of State and Municipal Orchestras, Choirs, Concert Organisations, Theatres, and 
Circuses (Valsts un pašvaldību profesionālo orķestru, koru, koncetrorganizāciju, teātru un cirka mākslinieku 
izdienas pensiju likums), OG No. 106, 7 July 2004.  
260  Case C-351/00 Pirkko Niemi [2002] ECR I-07007. 
261  Proposal of Amendments to the Labour Law (Grozījumi Darba likumā) No.756/Lp11, available in Latvian at 

the home page of Parliament (Saeima), available at: 
http://titania.saeima.lv/LIVS11/SaeimaLIVS11.nsf/0/1016FA82F40AC4EFC2257BC50037F713?OpenDocum
entaccessed 29 May 2014. 

262  Decision of the Supreme Court of Latvia in Case No. SKC-11706/2010, 8 December 2010, available in Latvia 

at: http://www.at.gov.lv/files/archive/department1/2010/skc-1170-10.pdf, accessed 5 September 2011. 

263  Articles 53(3), 136(7) and 138(6). 
264  Article 109(1). 
265  Article 134(2). The Labour Law provides for the right to claim part-time employment. It is optional for a 

worker (she may use such right if she wishes), but it is mandatory for an employer if a woman claims part-time 
employment. 

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If during the period of leave working conditions have been improved a parent is entitled to 
these improved working conditions in the same way as if she/he has not been on leave.266  

Under the Labour Law, maternity leave may commence from 56 days before and to 56 
days after the expected date of confinement. In addition, if a woman has visited a doctor and 
has  registered  as  a  person under  medical  supervision  due  to  pregnancy  by  the  12th  week  of 
pregnancy she is entitled to an extra leave period of 14 days.267 The Labour Law provides that 
the employer must not employ a pregnant worker two weeks before and after giving birth.268 
During  maternity  leave  a  woman  continues  to  acquire  the  right  to  annual  leave.269  Fathers 
have  a  right  to  10  days  of  paternity  leave  within  two  months  after  the  birth  of  their  child, 
adoptive parents have a right to 10 days of leave if an adoption child is younger than 3 and all 
parents (also adoptive) have a right to 18 months of parental leave until the child reaches the 
age of 8.270  
  Maternity, paternity and parental allowances are paid under the statutory social insurance 
system.  The  amount  of  maternity  and  paternity  allowances  constitutes  80 %  of  the  gross 
salary  and the  amount  of  childcare  allowance  is  70 %  of the  gross salary.271  Until 2012  the 
amount of maternity and paternity allowances was 100 % of the gross salary, but due to the 
deficit in the statutory social insurance budget that was caused by the economic crisis and the 
bad demographic situation, the amount was reduced to 80 %.272 In addition, on account of the 
economic crisis, the amount of the allowances has been restricted for the period from 1 July 
2009  until  31  December  2014.  A  person  may  receive  a  full  daily  allowance  of  up  to  EUR 
16.37  (LVL  11.51),  but  for  earnings  exceeding  such  amount  only  50 %.273  Since  2013  the 
minimum  full  amount  has  been  doubled.  Now  an  individual  is  entitled  to  a  full  daily 
allowance of up to EUR 32.75 (LVL 23.02).274  

Since  1  October  2014,  the  system  has  changed.  Parents  who  are  ensured  under  the 
statutory  social  insurance  system  and  are  on  full-time  parental  leave  will  be  entitled  to  a 
parental  allowance  amounting  to  60  %  of  their  average  salary  (statutory  social  insurance 
contribution  salary),  until  the  child  reaches  the  age  of  12  months.  If  a  parent  would  like  to 
receive the parental allowance until the child reaches the age of 18 months, the allowance will 
amount to 43.75 % of their average salary. If a parent chooses to stay in full-time or part-time 
employment during the period that the child is younger than 18 months, he/she will be entitled 
to 30 % of the parental allowance (30 % of the full allowance (60 % of the average salary)).275 
The new system provides for a much higher degree of flexibility, as parents who decide 
not to interrupt their work are now entitled to state support in the form of a social allowance. 

266  Articles 149(6), 154, 155 and 156. 
267  Article 154. 
268  This provision is in contrast with Article 8 of Directive 92/85 and the CJEU ruling in Boyle, which provides for 

a mandatory maternity leave of two weeks in total. Case C-411/96 Margaret Boyle and Others v Equal 
Opportunities Commission [1998] ECR I-06401, Paragraph 49. 

269  Article 152. 
270  Articles 155 and 156. 
271  The Law on Maternity and Sickness Insurance (Likums Par maternitates un slimības apdrošināšanu), OG 

No. 182, 23 November 1995. 

272  The Law on Maternity and Sickness Insurance (Likums Par maternitates un slimības apdrošināšanu), OG 

No. 182, 23 November 1995, respective amendments OG No. 202, 23 December 2011. 

273  The Law on the Payment of State Allowances for the Period from 2009 until 2012 (Likums Par valsts pabalstu 
izmaksu laika periodā no 2009. līdz 2012.gadam), OG No. 100, 30 June 2009. Initially special measures on 
account of the economic crisis were taken until 31 December 2012, but on 14 April 2011 Parliament adopted 
amendments envisaging the extension of this ‘crisis period’ until 31 December 2014 (OG No. 99, 29 June 
2011). 

274  Amendments to the Law on the Payment of State Allowances for the Period from 2009 until 2014 (Likums Par 

valsts pabalstu izmaksu laika periodā no 2009. līdz 2014.gadam), OG No. 192, 6 December 2012. 

275  For example, if a parent’s gross salary was EUR 1 000, the amount of parental allowance would be EUR 600 
or 60 % of the social insurance contribution salary. This applies to employed parents who are on full-time 
parental leave. If however a parent decides to stay in active employment he/she will be entitled to 30 % of the 
parental allowance, i.e. 30 % of EUR 600 (or the normal parental allowance), which would amount to EUR 
180. Article 106 of the Law on Maternity and Sickness Insurance. Amendments OG No. 228, 22 November 
2013.  

148  

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The  previous  system  was  seen  as  a  serious  obstacle  to  equal  opportunities  in  the  labour 
market  for  women,  because  it  did  not  allow  parents  to  combine  parental  leave  with 
employment. However, under the new system to the allowance is available to only one of the 
parents, which still fails to encourage the sharing of parental duties while remaining in active 
employment.  Latvian law goes  far  beyond the  minimum  requirements  regarding  pregnancy, 
maternity,  paternity  and  parental  protection  in  employment  and  in  statutory  social  security. 
This especially concerns the length of the period of special maternity protection, the length of 
pregnancy/maternity,  paternity  and  parental  leaves  and  the  rights  to  and  the  amount  of  the 
allowances. At the same time it is visible that the majority of discrimination cases arise on the 
grounds of pregnancy and maternity.276 The system of statutory social allowances during the 
various leaves is also unsatisfactory: although it replaces previous earnings it is not flexible 
and therefore does not allow effective combination of private and professional life. 

4. Statutory schemes of social security 

The  prohibition  of  discrimination in  the  field  of  statutory  social  security  is  provided  by  the 
Law  on  Social  Security.277  The  Law  on  Social  Security  constitutes  umbrella  legislation 
regulating  the  whole  social  security  system  –  including  the  right  to  healthcare,  education, 
jobseekers’  assistance,  state  social  allowances,  state  social  insurance  allowances,  and  social 
assistance  as  provided  by  the  State  and  municipalities.  It  follows  that  the  principle  of  non-
discrimination provided by the Law on Social Security goes far beyond the requirements of 
EU law. 

Since 2008, entitlement to the state old-age pension commenced at the age of 62, for both 
sexes.  However,  starting  on  1 January  2014  the  retirement  age  is  gradually  being  increased 
until in 2025 persons will be entitled to statutory old-age pension only at the age of 65.278 

Although  formally  the  social  security  sector  must  comply  with  the  principle  of  non-
discrimination, there are gaps stemming from special laws and regulations on the calculation 
of particular benefits, especially in relation to the acquisition of benefit entitlements following 
periods of interruption due to childcare leave. Each employed person has a right to state social 
insurance protection in proportion to the contributions made by him/her and by the employer. 
During childcare leave, parents are insured by the State instead of insuring themselves, but at 
a minimum amount.279 Consequently, being on childcare leave affects negatively the amount 
of the old-age pension. Since a considerably larger proportion of women than men still use the 
right to childcare leave, this situation constitutes indirect discrimination against women. Such 
treatment does not correspond to the principle of non-discrimination provided by the Law on 
Social Security, although it complies with an exception allowed under Directive 79/7/EEC.  

5. Self-employed persons  

The  protection  against  discrimination  under  Latvian  law  extends  to  self-employed  persons. 
The  newly  modified  Law  on  the  Prohibition  of  Discrimination  against  Natural  Persons  – 

276  Ombudsman: Employers have learned how to hide discrimination (Tiesībsargs: Darba devēji iemācījušies 
diskrimināciju maskēt), 10 July 2012, available in Latvian on http://www.tiesibsargs.lv/lv/darba-deveji-
diskriminaciju-iemacijusies-masket, accessed 31 May 2013. 

277  The Law on Social Security (Likums ‘Par sociālo drošību’), OG No. 144, 21 September 1995.. 
278  The Law on State Pensionn (likums "Par valsts pensijām"), OG No.182, 23 November 1995, amendments OG 

No.104, 4 July 2012. 

279  Until 2013 the monthly amount starting at which parents on childcare leave were insured was EUR 71 (LVL 

50). On 1 January 2013 this amount was doubled and it is now EUR 142 (LVL 100), which however is half of 
the statutory minimum salary (EUR 284 or LVL 200); the Law on Statutory Social Insurance (Likums ‘Par 
socialo apdrošināšanu’), OG No. 274/276, 21 October 1997; the Cabinet of Ministers Regulation No. 230 
‘Regulation on mandatory state social insurance contributions from the state budget and statutory social 
insurance budget’ (Noteikumi par valsts sociālās apdrošināšanas obligātajām iemaksām no valsts 
pamatbudžeta un valsts sociālās apdrošināšanas speciālajiem budžetiem), OG No. 91, 30 June 2001, 
respective amendments OG No. 201, 21 December 2012. 

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Performers  of  an  Economic  Activity  protects  self-employed  persons  not  only  against 
discrimination  with  regard  to  access  to  self-employment  but  also  in  relation  to  the 
establishment,  equipment  or  extension  of  a  business  or  the  launching  or  extension  of  any 
other form of self-employed activity.280 

Latvian  law  also  protects  self-employed  persons  and helping  spouses  during  periods  of 
pregnancy  and  maternity.  In  particular,  according  to  the  Law  on  State  Social  Insurance any 
self-employed person is subject to mandatory statutory social insurance,281 but the spouse of a 
self-employed  person  has  the  right  to  voluntarily  join  the  statutory  social  security  system. 
She/he  may  then  insure  herself/himself  against  the  risks  of  old  age,  maternity,  disability, 
sickness and childcare obligations. 

It is doubtful whether such regulation ensures the effective protection of helping spouses 

in practice, since there is only a right to join the state social security system voluntarily.  

6. Goods and services  

Directive 2004/113/EC is implemented by the Law on the Protection of Consumer Rights 282 
and the Law on Insurance Companies and their Supervision.283 However, implementation is 
incomplete because the Law on the Protection of Consumer Rights only concerns those goods 
and services providers who act within their professional capacity. They do not cover the sale 
of goods or the provision of services between private parties. For example, the law does not 
cover  the  situation  where  a  person  sells  his/her  own  apartment  and  offers  it  to  the  general 
public by public offer. 

Taking into account the CJEU decision in the Test-Achats case,284 Article 5.1 of the Law 
on  Insurance  Companies  and  their  Supervision  prohibiting  sex  discrimination  has  been 
modified.  Parliament  deleted  the  provisions  of  this  Article  that  allowed  the  use  of  actuarial 
factors  and  gave  the  Cabinet  of  Ministers  the  authority  to  define  the  types  of  insurance 
regarding which it is permissible.285 

However,  one  problem  regarding  the  provision  of  equal  rights in  the  field  of insurance 
remains.  The  implementing  provisions  only  require  the  definition  of  equal  premiums  and 
benefits  irrespective  of  sex,  pregnancy  and  maternity.  Like  Article  5  of  Directive 
2004/113/EC, they  do  not require  the  inclusion  in  insurance  programmes  of  risks  related to 
pregnancy and maternity. As a result, no insurance company in Latvia provides any standard 
travel  and  health  insurance  programme  covering  risks  related  to  pregnancy  and  maternity. 
Consequently,  the  norms  prohibiting  pregnancy  and  maternity  discrimination  turn  out  to  be 
meaningless in practice. 

7. Enforcement and compliance aspects  

EU gender equality law in Latvia only provides individual enforcement measures, i.e. Latvia 
does not have any laws providing for any kind of horizontal measures that must be taken by 
the State. 

280  The Law on Prohibition of Discrimination against Natural Persons – Performers of Economic Activities 
(Fizisko personu – saimnieciskās darbības veicēju – diskriminācijas aizlieguma likums), OG No. 199, 
19 December 2012, repealing previous law, OG No. 89, 9 June 2009. 

281  This applies if the annual income on average reaches the monthly statutory minimum salary. The Cabinet of 
Minister Regulation No. 992 ‘Regulation on minimum amount of mandatory statutory social insurance 
contributions and its definition for self-employed persons’ (Noteikumi par valsts sociālās apdrošināšanas 
obligāto iemaksu objekta minimālo apmēru un tā noteikšanas kārtību pašnodarbinātajam), OG No. 190, 
15 December 2008. 

282  Patērētāju tiesību aizsardzības likums, OG No. 104/105, 1 April 1999. 
283  Apdrošināšanas sabiedrību un to uzraudzības likums, OG No. 188/189, 30 June 1998, respective amendments 

OG No. 35, 4 March 2009. 

284  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773. 

285  Respective amendments OG No. 154, 28 September 2012. 

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Consequently, gender equality norms are enforceable only on an individual basis. Also, 
Latvian law does not envisage any rights to collective claims or rights to claim protection of 
rights in the name of a person other than claimant him/herself.  
The enforcement measures in individual cases of breach of the non-discrimination principle 
are the following: Individuals may bring civil claims before regular courts dealing with civil 
and criminal cases in disputes regarding private-law transactions (employment and access to 
and  supply  of  goods  and  services).  In  employment  disputes,  individuals  may  ask  for  non-
discriminatory  employment  conditions,  reinstatement  (except  in  discriminatory  recruitment 
cases) and compensation, including moral damages. Regarding disputes on the access to and 
supply of goods and services, individuals may claim the provision of goods and services in a 
non-discriminatory way and compensation. Individuals may request administrative authorities 
such  as  the  State  Labour  Inspectorate  and  the  courts  to  impose  administrative  sanctions. 
Currently, Article 20417 of the Administrative Violation Code provides for an administrative 
penalty  of  EUR  400  to  EUR  700  (LVL  100  to  LVL  500)  if  a  person  has  breached  the 
principle of non-discrimination as laid down in specific laws.286 Article 1491 of the Criminal 
Law  providing  for  criminal  sanctions  if  a  person  has  breached  the  principle  of  non-
discrimination  was  repealed  in  2012,  because  since  its  adoption  in  2007  it  had  been  never 
applied in practice.287 There are some problems with the timeframe for submitting a claim to 
court  when  the  principle  of  non-discrimination  has  been  breached  in  an  employment 
relationship. In discrimination cases, Latvian Labour Law allows three months for submitting 
a claim.288 Other types of claims under the Labour Law, according to Article 31(1), must be 
submitted with a time limit of two years, except for claims of unfair dismissal. This seems to 
be in breach of two principles provided by EU law: effectiveness and equivalence.289 

The  prohibition  of  victimisation  and  the  rule  on  reversal  of  the  burden  of  proof  are 
located  in  the  Labour  Law,  the  Law  on  the  Protection  of  Consumer  Rights,  the  Education 
Law,  the  Law  on  Support  of  Unemployed  Persons  and  Jobseekers  and  the  Law  on  the 
Prohibition  of  Discrimination  against  Natural  Persons  –  Performers  of  an  Economic 
Activity.290 In the past, the application of the reversed burden of proof by national courts was 
unsatisfactory;  in  only  a  small  number  of  discrimination  cases  did  the  national  courts 
explicitly  refer  to  the  application  of  this  principle.  However,  in  recent  years  the  Supreme 
Court  has  paid  particular  attention to  the  correct  enforcement  of such  right  by  providing  an 
explicit interpretation based on the case law of the CJEU.291 

Formally,  the  national  courts  are  accessible  for  victims  of  discrimination.  However, 
victims of discrimination do not always go to court. One of the reasons for this is the cost of 
legal services, which is high, and another is the fear of victimisation. There are also problems 
with  the  enforcement  of  the  principle  of  equal  pay,  because  firstly,  information  on 
remuneration is usually confidential and, secondly, there is no effective control mechanism on 
payment systems in private businesses. 

The  Law  on  Associations  and  Foundations  provides  for  the  right  of  non-governmental 
organisations to represent the interests of individuals before a national court. In addition, the 
National  Equality  Body  in  Latvia  functions  as  the  Ombudsman’s  Office  of  the  Republic  of 
Latvia.  The  Ombudsman’s  office  supervises  the  implementation  and  enforcement  of  all 
international  law  covering  the  principle  of  non-discrimination  in  the  field  of  human  rights. 

286  OG No.51, 20 December 1984, Amendments with regard to the amount of the penalty in connection with the 

change of currency to the Euro, OG No.201, 15 October 2013. 

287  OG. No.199/200, 8 July 1998, respective amendments OG No.107, 5 July 2007 and OG No.27 December 

2012. 

288  Amendments to the Labour Law, OG No. 47, 25 March 2010. The term for bringing a claim was extended 

from one to three months. Such amendments do not solve the problem, however. 

289  Case C-326/96 B.S. Levez v T.H. Jennings (Harlow Pools) Ltd. [1998] ECR I-07835, Paragraph 44. 
290  The Labour Law grants protection against victimisation not only in the case of the use of non-discrimination 

rights, but for any of the employment rights. 

291  See, for example, the decision of the Senate of the Supreme Court in Case No. SKC-684/2012, 6 July 2012, 

available in Latvian at: http://www.at.gov.lv/lv/info/archive/department1/2003-12artezem/article11/, accessed 
29 May 2014. 

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According to the Ombudsman Law, the Ombudsman has the right to represent the interests of 
private persons in civil-law proceedings when there has been a breach of the principle of non-
discrimination. So far the Ombudsman’s Office has acted as representative in two cases.  

Collective  agreements  are  usually  applicable  in  one  enterprise  or  institution.  However, 
there are some sectors of industry which have generally binding collective agreements (e.g. 
construction, medicine, the railways), but they do not specifically deal with issues concerning 
gender equality. Trade union movements and workers’ representatives’ organisations are not 
yet well developed.  

8. Overall assessment  

In general the EU gender equality acquis has only partially been implemented in Latvian law. 
However, in spite of some specific legal gaps and the necessity for more detailed regulation, 
e.g.  regarding  equal  pay,  the  major  deficiency  is  the  lack  of  any  horizontal  provisions  (or 
umbrella  law)  on  the  obligations  of  the  State  in  the  provision  of  equal  rights  and  equal 
opportunities.  

LIECHTENSTEIN – Nicole Mathé 

1. Implementation of central concepts 

Directives 2006/54/EC and 2004/113/EC have been transposed into national legislation by the 
amendment of the Gender Equality Act (GLG), which entered into force on 8 June 2011.292 
are Definitions of pay and social security systems are newly introduced that exactly follow the 
wording of Directive 2006/54/EC. 

The main concepts of EU gender discrimination law were implemented in Liechtenstein 
by the GLG. The GLG contains definitions of direct and indirect discrimination that exactly 
follow the wording of Directive 2006/54/EC. Positive action is allowed insofar as there is no 
discrimination  if  adequate  measures  are  taken  to  achieve  factual  equality.  Instructions  to 
discriminate  are  also  considered  as  discrimination  according  to  the  GLG.  Definitions 
concerning  harassment  and  sexual  harassment  in  the  GLG  again  follow  those  in  Directive 
2006/54/EC. 

The  intention  of  the  legislator  by  introducing  these  definitions  into  national  law  was 
indeed to attain harmonisation with EU law. These definitions were already part of the former 
legislation,  which  is  now  structured  differently.  There  is  no  case  law  dealing  with  these 
concepts however, and consequently the field of interpretation is still rather open. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
Article  1a  (a)  and  (b)  of  the  GLG  establishes  the  prohibition  of  direct  and  indirect 
discrimination of female and male employees on grounds of sex. The definition of pay was 
recently introduced by the amendment of the GLG, which entered into force on 8 June 2011, 
and  corresponds  to  the  wording  of  Directive  2006/54/EC.  The  prohibition  also  specifically 
concerns sex discrimination resulting in unequal pay. Pursuant to Article 5 GLG a person who 
is  discriminated  against  by  receiving  unequal  pay  has  the  right  to  compensation  for  the 
difference in salary from the date of instituting proceedings to five years before and after that 
date until the termination of the employment contract. The obligation to pay equal salaries to 
men and women for equal or equivalent work was already integrated into labour legislation 
(Paragraph 1173a Article 9(3) of the Civil Code) in 1995. Enforcing the right to equal pay for 

292  GLG as amended by the Official Gazette (LGBl) 2011/212, http://www.gesetze.li/Seite1.jsp?LGBl=
1999096.xml&Searchstring=Gleichstellungsgesetz&showLGBl=true, accessed 22 May 2014. 

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equal  or  equivalent  work  then  became  possible  on  an  individual  basis.  The  law  does  not 
specify in detail the extent to which pay differentials are accepted. 

2.2. Access to work and working conditions 
The Gender Equality Act regulating the promotion of de facto equality between women and 
men  entered  into  force  on  5  May  1999  and  applies  to  employees  in  private  and  in  public 
employment  relationships.  Article  3(4)(b)  GLG  provides  for  an  exception  to  discrimination 
where,  firstly,  adequate  measures  are  taken  to  achieve  factual  equality,  and,  secondly,  by 
reason  of  the  nature  of  the  particular  occupational  activity  concerned  or  of  the  context  in 
which  it  is  carried  out,  a characteristic related  to sex constitutes  a  genuine  and determining 
occupational requirement. 

2.3. Occupational pension schemes 
In  Liechtenstein  a  specific  law  provides for  occupational  pension schemes  (Gesetz  über  die 
betriebliche  Personalvorsorge,  BPVG),  covering  benefits  for  old  age,  invalidity  and  death. 
The  working  population  consists  of  41  %  women  and  59  %  men.  These  figures  show  that 
fewer women than men benefit from occupational schemes. Since 2010 the pensionable age 
of 64 years has been the same for women and men. Recently introduced by the amendment of 
the  GLG,  which  entered  into  force  on  8  June  2011,  is  Article  1a(f)  GLG  containing  the 
definition  of  social  security  systems  existing  in  Liechtenstein.  The  prohibition  of 
discrimination shall cover statutory as well as occupational social security schemes. 

3. Pregnancy and maternity protection, parental leave and adoption leave  

Several  laws  contain  norms  which  are  relevant  to  the  subject,  namely  the  Civil  Code 
(Allgemeines  Bürgerliches  Gesetzbuch,  ABGB),  the  Labour  Code  (Arbeitsgesetz)  and  the 
Sickness 
(Krankenversicherungsgesetz,  KVG).  The  prohibition  of 
discrimination which also applies to maternity was recently introduced by the amendment of 
the GLG (e.g. regarding the return to the workplace after maternity leave), which entered into 
force on 8 June 2011 pursuant to Article 3(1) GLG.293 

Insurance  Act 

Articles 35, 35a and 35b of the Labour Code entered into force on 1 January 1998 and 
regulate health protection, occupational activities, alternative work and the continued payment 
of  wages  during  maternity.  According  to  these  provisions,  working  conditions  for  pregnant 
workers and women who are breastfeeding have to be adapted so that their health and that of 
their  children  are  not  affected.  Women  in  this  condition  can  only  be  employed  with  their 
consent.  They  are  allowed  to  leave  the  workplace  by  simple  notification.  Breastfeeding 
mothers are entitled to time off which is necessary for breastfeeding. Women are not allowed 
to  work  for  eight  weeks  after  childbirth.  Pregnant  workers  are  not  allowed  to  work  from  8 
p.m. to 6 a.m. during the eight weeks preceding childbirth. The employer is obliged to offer 
them  equal  work  between  6  a.m.  to  8  p.m.  The  same  applies  in  the  event  of  a  medical 
indication  at  any  other  moment  during  the  pregnancy  and  for  the  period  between  8  and  26 
weeks after childbirth. Women are entitled to the continued payment of 80 % of their salary 
plus adequate compensation for the rest if their employer is not able to offer them equal work 
between  6  a.m.  and  8  p.m.  During  the  entire  period  described,  the  woman  must  not  be 
deprived  of  any  advantage  with  respect  to  her  professional  position  in  the  company,  her 
seniority or any promotion linked to her regular position. 

Paragraph 1173a Article 18 Section 3 ABGB prescribes that the employer has to continue 
to pay salary to the employee during absence due to pregnancy and childbirth, provided that 
the employment  contract was  concluded  for  a  period  of  more  than at  least three  months,  or 
that the employment relationship has already lasted for more than three months. A reduction 
in the annual leave is not allowed if the employee is absent from her workplace for up to five 
months  a  year  on  the  grounds  of  pregnancy  and  childbirth.  According  to  Paragraph  1173a 

293  GLG as amended by LGBl. 2011/212. 

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Article 49 Section 1(b) ABGB the employer is not allowed to give a notice of dismissal to the 
employee during her pregnancy and up to 16 weeks after childbirth. This last provision was 
introduced in 1992. 

Furthermore,  Paragraph  1173a  Article  36b  ABGB294  provides  for  a  return  to  the 
workplace after maternity leave. This provision was changed in 2011 and now stipulates the 
right to return to the  former  position  after  maternity  leave,  and  if this  is  not  possible,  to an 
equivalent  position  under  conditions  which  are  not  worse  than  for  the  former  position.  The 
employee  has  the  right  to  all  improvements  of  working  conditions  which  could  have  been 
achieved during the period corresponding to the time that she was on leave. 

Article 15 KVG provides that benefits shall be paid to women for 20 weeks, of which at 
least 16 weeks are after childbirth, provided that the woman in question was insured before 
childbirth  for  a  period  of  at  least  270  days,  of  which  three  months  must  have  been 
consecutive.  The  allowance  under  this  maternity  insurance  scheme  amounts  to  80  %  of  the 
insured salary.  

Protection is also foreseen with regard to parental leave and for employees with family 
obligations:  if  they  have  to  raise  children  under  the  age  of  15  and  have  relatives  or  close 
persons needing care, this has to be taken into account when fixing their working hours. Such 
an employee has to agree to working overtime and he or she can ask for a lunch break of at 
least an hour and a half (Article 36 Labour Code).  

If the employee has been employed for more than a year or if the contract was concluded 
for  more  than  one  year,  the  employee  is  entitled  to  four  months’  parental  leave.295  A  new 
element introduced by the transposition of Directive 2010/18/EU was the upgrade from three 
to  four  months  of  parental  leave.  For  the  calculation  of  the  duration  of  the  labour  contract 
several  consecutive  fixed-term  contracts  with  the  same  employer  are  to  be  combined.  The 
right to parental leave is established upon the birth of a child and leave can be taken until the 
child is three years old. In the case of adoption or the permanent care of a foster child, leave 
can be taken until the child is five years old. The employee has to inform the employer of the 
intended period of parental leave three months in advance. The employer may request that the 
employee selects a different period if there are reasonable work-related grounds, such as the 
fact that the work in question is seasonal work, that no replacement can be found in time, that 
a  certain  number  of  other  employees  are  all  asking  for  parental  leave  at  the  same  time,  or 
because the employee’s position in the company is of strategic importance. In companies with 
fewer than 30 employees the employer has the right to defer the period of parental leave in all 
cases  where  the  planned  leave  would  interfere  with  the  operations  of  the  company.  The 
employee is entitled to take parental leave on a full-time, part-time or hourly basis, provided 
he/she  respects  the justified  interests  of  the  employer.296  After  parental leave,  the employee 
has  the  right  to  return  to  his  or  her  former  work  or,  if  this  is  not  possible,  to  equivalent  or 
similar work under conditions which are not worse than for the former position. After the end 
of the parental leave the employee can request the employer for a change in working hours for 
a certain period which has to be agreed upon by both the employer and the employee. In the 
response  to  such  a  request  the  employer  also  has  to  consider  justified  interests  of  the 
employee.297 (Paragraph 1173a Article 34(a-c) ABGB). 

4. Statutory schemes of social security 

first  pillar 

is  considered 

The 
insurance 
to  consist  of 
(Krankenversicherung,  KVG),  the  invalidity  scheme  (Invalidenversicherung,  IVG),  the  old-
age  scheme  (Alters-  und  Hinterlassenenversicherung,  AHVG),  the  accidents  at  work  and 
occupational  diseases  scheme,  called  obligatory  accidents  insurance  (Unfallversicherung, 

the  obligatory  sickness 

294  ABGB as amended by LGBl. 2011/214. 
295  Paragraph 1173a Article 34a ABGB as amended by LGBl. 2012/402. 
296  Paragraph 1173a Article 34b(4) ABGB as amended by LGBl. 2012/402. 
297  Paragraph 1173a Article 34c ABGB as amended by LGBl. 2012/402. 

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UVersG),  and  unemployment  insurance  (Arbeitslosenversicherung,  ALVG).  Every  person 
domiciled  in  Liechtenstein  is  insured  on  a  compulsory  basis  against  sickness  and  nursing, 
accidents,  invalidity  and  old  age.  Employees  are,  in  addition,  insured  against  accidents  at 
work and occupational diseases as well as unemployment. 

Following  existing  stereotypes  mostly  women  benefit  from  family  and  survivors’ 
benefits.  But  Liechtenstein’s  legislation  has  been  changed  in  order  to  eliminate  gender 
discrimination as far as possible. In general spouses of both sexes are treated equally.  

In this field gender equality has gone rather far. Since 2010 the pensionable age is equal 
for men and women (64 years) (Article 55 AHVG). Pensions for widows and widowers are 
foreseen in the law (Articles 57 and 58 AHVG) and equal for both. Advantages for parents 
who dedicate time to the education of their children are equally divided between them. They 
benefit from so-called ‘Erziehungsgutschriften’, a fictitious income, which is added upon the 
calculation of the pension for the period dedicated to family work. With regard to the main 
points no gender-discriminatory provisions can be found. It should be added that only for a 
transitional generation (male spouses born in 1944 and earlier) will an additional pension for 
the female spouse be paid by the insurance, if the wife was born in 1954 or earlier. 

5. Self-employed persons 

The first equality report of the Liechtenstein Government in 1997 stated that the legislation 
concerning  commerce  had  to  be  free  from  any  gender-based  discrimination  and  had  to  be 
construed  as  gender-neutral  from  a  material  point  of  view.  Provisions  in  the  former 
Commercial  Code  were  not  allowed  to  have  any  gender-discriminatory  effects.  It  was  also 
stated in the report that Article 30 Section 2 of the former Commercial Code (Gewerbegesetz) 
had  been  amended  in  1996  so  as  to  allow  widows  and  widowers  to  continue  a  business 
enterprise based on the trading licence of the deceased spouse. Now it has been replaced by a 
new Commercial Law that no longer contains such a specific norm. 

Article 46a of the Marriage Act (Ehegesetz) regulates the compensation for participating 
spouses of self-employed persons in the enterprise and entered into force on 1 April 1993. If 
one  spouse  performs  work  in  the  enterprise  of  the  other  spouse,  he  or  she  is  entitled  to 
compensation for this work. The amount of the compensation is calculated on the basis of the 
nature of the work and the period during which it was performed. The standard of living of 
the spouses as a whole and the maintenance allowance are also taken into consideration in this 
calculation.  Directive  2010/41/EU  has  been implemented  into  Liechtenstein’s  legislation  by 
the GLG, KVG and BPVG.  

6. Goods and services 

Directive 2004/113/EC has been transposed into national legislation by the amendment of the 
Gender Equality Act (GLG), which entered into force on 8 June 2011.298 Article 4a (5) lit. (c) 
(1)-(3) GLG implements Article 5(2) of Directive 2004/113/EC and is still in force because 
the  Test-Achats  ruling  of  the  CJEU  does  not  automatically  affect  EEA  law.299  The  EEA 
Committee shall be competent there. In principle the CJEU ruling is applicable to exchanges 
of services between EU residents. 

7. Enforcement and compliance aspects 

The GLG provides for judicial protection before the courts and for a conciliation procedure 
prior to the court procedure.300 In addition, specific protection in the case of so-called revenge 

298  GLG as amended by LGBl. 2011/212, http://www.gesetze.li/Seite1.jsp?LGBl=1999096.xml&Searchstring=

Gleichstellungsgesetz&showLGBl=true, accessed 22 May 2014. 

299  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773. 
300  Articles 7b and 11 GLG.  

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dismissals  is  foreseen  where  persons  are  dismissed  as  a  reaction  to  a  complaint  within  the 
business  or  to  any  legal  proceedings  aimed  at  enforcing  compliance  with  the  principle  of 
equal treatment (Article 10 GLG). Furthermore, the GLG includes a provision concerning the 
prohibition of any reprisal for the employee him/herself and any other employees involved in 
the case, as a reaction to a complaint within the business or to any legal proceedings aimed at 
enforcing compliance with the principle of equal treatment.301 

Norms introduced in 2006 concern improved protection against unfair dismissal and the 
possibility for group actions, and, in addition, the procedure was amended through facilitation 
respectively easing the burden of proof.  

Pursuant  to  Article  5  GLG  a  person  who is  discriminated  against  by  receiving  unequal 
pay  has  the  right  to  compensation  for  the  difference  in  salary  from  the  date  of  instituting 
proceedings to five years before and after that date until the termination of the employment 
contract. According to Article 5(1)(a-c) GLG a person discriminated against has the right to 
demand before the court or the administrative authority that imminent discrimination is to be 
forbidden  or  has  to  be  omitted,  an  existing  discrimination  has  to  be  removed  or  a 
discrimination  has  to  be  declared  if  it  is  still  disruptive.  If  there  is  any  discrimination  in 
refusing an appointment or in the termination of a private employment contract, the person in 
question is entitled to compensation on the basis of the determined salary. In the first case the 
prescription period is three months from the moment of the employee being informed of the 
refusal  by  the  employer.  In  the  second  case  the  person  has  to  appeal  to  the  employer  in 
writing within the notice period (normally a three-month notice period) and if the contract is 
not continued the prescription period is six months from the end of the contract (Paragraph 
1173a  Article  48  ABGB). The  compensation  for  discrimination  by  refusing  an appointment 
corresponds to a maximum amount of three monthly salaries. This amount is the same even if 
there  are  more  persons  demanding  compensation. The  compensation  for  discrimination in  a 
termination of a private employment contract also corresponds to the amount of three monthly 
salaries in total, or at least EUR 4 200 respectively (CHF 5 000), when concerning (sexual) 
harassment (Article 7c(3) GLG). 

Article 7 GLG gives organisations that have had their seat in Liechtenstein for five years 
and that deal with equality matters between women and men in a broad sense the opportunity 
to defend the interests of employees in sex discrimination cases before the courts. Individual 
persons  affected  by  sex  discrimination  need  to  give  their prior  authorisation  when  the legal 
action in the name of the organisation is to state that discrimination has taken place. Before 
bringing the case to court the employer’s opinion has to be heard. The court’s decision takes 
the  form  of  a  declaration  that  discrimination  has  (not)  been  shown.  In  order  to  receive 
compensation,  the  individuals  concerned  will  each  have  to  start  separate  and  individual 
proceedings,  although  this  will  be  much  easier  following  a  group  action.  It  should  be 
mentioned  that  the  amended  GLG  includes  the  new  possibility  for  organisations  to  bring  a 
claim  under  the  name  of  the  concerned  person,  to  participate  in  the  name  of  that  person  or 
only to participate in the procedure to help the concerned person.302 

Articles  18  and  19  GLG  provide  for  the  Gender  Equality  Commission  and  the  Gender 
Equality Office. Since March 2005 the Equality Office has dealt with equal opportunities. Its 
competence  has  been  modified  with  regard  to  its  independent  position.  Article  19(3)  GLG 
explicitly  states  that  the  Equality  Office  shall  be  independent  with  respect  to  its  tasks  of 
counselling authorities and the private sector, executing public relations as well as studies and 
recommendations on the appropriate measures to authorities and the private sector. The social 
dialogue  is  guaranteed  in  Article  19(2)(e)  GLG  where  the  Equality  Office  shall  cooperate 
with public or private institutions; the Government report explains that under institutions one 
shall also understand the social partners. 

Collective  bargaining 

so-called  Gesamtarbeitsvertrag,  GAV, 
the 
Paragraph 1173a Article 101 et seq. ABGB) is an instrument used in Liechtenstein’s private 

(especially 

301  Article 7a GLG.  
302  Article 7(1)(b) GLG.  

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law  whose  function  is  rather  similar  to  the  law  itself.  This  particular  collective  bargaining 
agreement  (GAV)  puts into  force  clauses  between  the  parties  which  override  the  individual 
labour contract and partly the legal regulations and can also apply to third parties. The GAV 
is mutually agreed and signed by the employees’ representative (the trade union LANV) and 
by  the  representative  of  the  employers  (the  GWK).  The  contracting  parties  wish  to  achieve 
several goals by signing the GAV, such as preserving the labour peace, settling disputes by 
mutual  consent,  enhancing  the  social,  economic  and  environmental  development  of  each 
branch of trade, as well as keeping Liechtenstein’s marketplace competitive in a social market 
economy  by  encouraging  innovations  and  a  modern  labour  organisation.  This  also  includes 
equal  opportunities  for  men  and  women  with  regard  to  equal  pay.  A  third  of  all  GAVs 
explicitly contain a clause concerning equal opportunities between men and women. It has to 
be  mentioned  that the  GAVs (such  as  in the  metal industry,  the  non-metal  industry  and  the 
building trades) that mention equal opportunities between men and women are applied to the 
largest number of employees.  

8. Overall assessment  

From a purely theoretical legal view it can be confirmed that the application of the principle 
of equal treatment is satisfactory. However, because of the lack of case law concerning gender 
equality in Liechtenstein it is difficult to assess whether enforcement is satisfactory as well. 
Nevertheless, active awareness-raising campaigns are conducted concerning gender equality. 

LITHUANIA – Tomas Davulis 

1. Implementation of central concepts 

The  Constitution  of  25  October  1992303  establishes  the  general  principle  of  equality 
(Section 29) and provides the right to fair remuneration for work where the concept of ‘fair 
remuneration’ also includes the principle of non-discrimination (Section 48(1)).304 Despite the 
fact that the Constitution contains a clause on the direct effect of constitutional provisions, the 
Constitutional Court has not yet examined the possibility to rely on them in disputes between 
private persons (horizontal effect).  

This circumstance underlines the importance of ordinary legislation when implementing 
the principle of equality. There are several pieces of legislation addressing the issue. First of 
all,  the  Labour  Code  of  4  June  2002305  mentions,  among  the  principles  of  labour  law,  the 
principle  of  fair  remuneration  and  the  general  principle  of  the  equality  of  employees 
irrespective  of  inter  alia  their  gender,  marital  and  family  status  as  well  as  (since  2012)  the 
intention to have children. However, for the practical implementation of these principles the 
consideration  of  special  laws  on  equal  treatment  is  indispensable.  The  Equal  Opportunities 
Act for Women and Men (EOAWM)306 and the Equal Opportunities Act (EOA)307 introduce 
the  central  concepts  and  provide  basic  rules,  define  the  scope  of  their  application,  and 
establish the mechanisms of supervision and enforcement. One of the Lithuanian peculiarities, 
however, is a certain ‘double coverage’ of discrimination on the ground of sex by these two 
different Acts. The EOAWM is a special law particularly dealing with gender discrimination 

303  State Gazette (Valstybės žinios), 1992, No. 33–1014. 
304  Ruling of 18 December 2001 of the Constitutional Court of the Republic of Lithuania. 
305  State Gazette, 2002, No. 64–2569. 
306  State Gazette, 1998, No. 112-3100. An unofficial translation into English is available on the Internet site of the 
Lithuanian Parliament on http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=421709, accessed 1 July 
2013. 

307  State Gazette, 2003, No. 114-5115. An unofficial translation into English is available on the Internet site of the 
Lithuanian Parliament on http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=389500, accessed 1 July 
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whilst the Equal Opportunities Act (EOA) intends to deal with discrimination on the grounds 
stipulated  by  the  EU  equality  directives  of  2000  and  a  number  of  other  domestic  grounds, 
such as nationality, language and social origin. With the amendments from 2008, gender was 
also added to the list of the prohibited grounds of discrimination under the EOA. This double 
coverage  can  at  some  point  create  misunderstandings,  in  the  application  of  the  law,  as  both 
acts regulate the contextually same issue in slightly different ways and to different extents., 
The  EOAWM  is  a  lex  specialis  but  the  later  EOA  is  more  advanced  in  terms  of  coverage, 
including a precise description of obligations.   

In defining major concepts in the EOAWM, the Lithuanian legislator has tried to keep in 
line  with  relevant  European  directives.  There  is  only  a  small  number  of  slight  language 
differences  in  transposing  the  central  definitions  of  the  EU  directives,  but  they  are  rather 
insignificant.  Direct  discrimination  means  treatment  where  one  person  is  treated  less 
favourably on grounds of sex than another is, has been or would be treated in a comparable 
situation.  Indirect  discrimination  shall  mean  an  act  or  omission,  legal  provision,  assessment 
criterion  or  practice  that  formally  are  the  same  for  women  and  men,  but  whose 
implementation  or  application  would  put  persons  of  one  sex  at  a  particular  disadvantage 
compared to persons of the other sex, unless such act or omission, legal provision, assessment 
criterion or practice is objectively justified by a legitimate aim, and the means of achieving 
that aim are appropriate and necessary. An instruction to discriminate is clearly indicated as 
amounting  to  discrimination,  but  is  not  further  defined.  Sexual  harassment  is  defined  as 
unwanted  insulting,  verbal,  non-verbal,  or  physical  conduct  of  a  sexual  nature.  The 
requirement that the conduct must be ‘insulting’ for it to constitute sexual harassment is not 
included  in  the  EU  definition,  which  rather  stipulates  the  criterion  of  an  ‘offensive’ 
environment.  .  Harassment  means  any  unwanted  conduct  when,  because  of  the  sex  of  a 
person, another person attempts to violate the dignity of the first person or the dignity of the 
first  person  has  been  violated  and  there  is  an  attempt  to  create  an  intimidating,  hostile, 
humiliating or offensive environment or this type of environment has been created. Positive 
actions are explicitly mentioned as an exception to the principle of non-discrimination. They 
are defined as specific temporary measures laid down by specific laws, aimed at accelerating 
the guaranteeing of factual equal rights for women and men and which must be repealed upon 
the implementation of equal rights and equal opportunities for women and men. However, the 
reference to specific laws makes this action practically unenforceable since there are no other 
laws allowing these measures to be taken.  

2. Equal pay and equal treatment at work  

2.1. Equal pay  
The Labour Code defines the concept of ‘pay’ as ‘the basic salary and all additional payments 
directly paid by the employer to the employee for the work performed under an employment 
contract’.  The  indirect  payment  is  not  explicitly  mentioned  here,  and  therefore  different 
benefits or services provided by third parties (subscriptions, tickets, meals, insurance-type or 
pensions-type benefits etc.) do not fall under the domestic notion of pay. In those cases the 
general  principle  of  equality  of  employees  may  be  applied  but there is  no  court practice  on 
this point yet. Under the Labour Code, men and women shall receive equal pay for equal or 
equivalent work. In the work classification system for determining pay, the same criteria shall 
be equally applicable to both men and women, and the system must be elaborated in such a 
way as to avoid any discrimination on the grounds of sex. The EOAWM also introduces the 
principle of equal pay. It stipulates that the employer is obliged to provide equal pay for work 
of equal value, to provide equal working conditions and equal benefits. The application of less 
(more) favourable terms of employment or payment for work to an employee is considered as 
a ‘violation of equal rights for women and men’ and this is punished according to the rules of 
administrative law. 

The  scope  of  application  of  the  principle  of  equal  pay  and  equal  treatment  at  work  is 
quite  confusing  in  Lithuania,  because  of  the  inconsistency  of  the  legislator  in  adopting  two 
different  laws  on  equal  treatment  and  the  differences  in  the  notion  of  ‘employee’  under 

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domestic  and  EU  law. The  Labour  Code and the  EOAWM are  applicable  to  all  employees, 
i.e. persons involved in a relationship based on a contract of employment. Public servants can 
rely on the Labour Code (and therefore on the EOAWM) only by way of analogy of law. The 
scope  of  application  of  the  EOAWM  does  not  explicitly  include  ‘public  servants’,  but  the 
Equal Opportunities Act (EOA) does. Therefore public servants will be covered by equality 
legislation either directly or by way of analogy. Politicians, the highest rank of government 
officers,  judges,  public  prosecutors,  and  military  personnel  do  not  fall  into  the  category  of 
public servants stricto sensu but again, by way of analogy of law, they may enjoy the same 
protection as public servants. However, court practice is lacking on this point. 

2.2. Access to work and working conditions 
As far as working conditions are concerned, the Labour Code expressly prohibits the rejection 
of job  applications  and  the  termination  of  employment  contracts  on  the  ground  of  sex.  The 
Labour  Code  contains  no  further  provisions  expressly  prohibiting  direct  or  indirect 
discrimination  as  regards  access  to  employment,  vocational  training  and  promotion,  and 
working conditions, but they are consolidated in the EOAWM. According to Section 5 p.1 of 
the  Act,  the  employer  is  obliged  to  apply  gender-neutral  recruitment  and  promotion criteria 
and conditions, except where the work can only be performed by persons of a particular sex, 
where  the  necessity  of  a  particular  sex  may  be  grounded  on  the  nature  of  activity  or  the 
context in which it is carried out, provided that the objective sought is legitimate and complies 
with the principle of proportionality (exception of Article 14(2) of Directive 2006/54/EC). In 
addition,  the  EOAWM  obliges  employers  to  provide  equal  working  conditions  and  equal 
opportunities to improve qualifications, to provide equal benefits and to apply the principle of 
equal  pay  for  equal  work,  including  all  payments.  The  special  protection  of  women  during 
pregnancy,  childbirth  and  nursing  as  well  as  requirements  for  safety  at  work  which  are 
applicable to women and aimed at protecting women’s health have been withdrawn from the 
scope of application of the principle of non-discrimination. 

2.3. Occupational pension schemes 
Occupational  social  security  schemes  in  the  private  sector  were  introduced  in  2006  but  are 
still very rare in Lithuania. The pension and social security schemes for public servants form 
part  of  the  general  statutory  scheme,  accompanied  by  specific  state  pension  schemes  for 
judges,  academics/scientists,  some  public  officers,  and  members  of  the  armed  forces. 
Different  pensionable  ages  in  occupational  pension  schemes  are  expressly  prohibited  under 
the  EOAWM.  In  2008  the  EOAWM  was  supplemented  to  include  new  provisions  on  the 
prohibition  of  discrimination  based  on  sex  in  social  security  schemes,  including  provisions 
that  aim  to  supplement  or replace  the  state  social security  system.  Sickness, invalidity,  old-
age,  early  retirement,  accidents  at  work,  occupational  diseases,  unemployment  and  social 
protection  schemes  are  covered  by  the  principle  of  non-discrimination,  including  survivors’ 
pensions, allowances and other benefits. Exclusions related to the type of occupational social 
security  scheme  are  not  provided  by  the  law. The  Act  cites  examples  of  prohibited actions: 
discrimination  is  prohibited  in  the  establishment  of  possibilities  to  participate  in  and  enjoy 
social protection, in the determination of contributions and their level, in the determination of 
allowances including those granted to spouses and dependants, as well as in the determination 
of  the  duration  of  the  payment  of  allowances.  The  non-discrimination  provisions  in  social 
security  schemes  are  applicable  to  ‘employed  persons’,  including  self-employed  persons, 
persons  who  terminate  their  employment  due  to  sickness,  maternity,  an accident  at  work  or 
forced  unemployment  as  well  as  to  persons  looking  for  employment,  disabled  workers  and 
persons  who  are  entitled  to  receive  the  benefits  on  their  behalf.  This  means  that  public 
servants  and  other  categories  of  state  employees  who  are  covered  by  the  system  of  state 
pensions  (military  personnel,  academics/scientists  and  judges)  are  clearly  covered  by  the 
principle  of  non-discrimination  to  this  extent.  The  same  is  true  for  self-employed  persons, 
who are not yet mentioned elsewhere in equality legislation.  

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3. Pregnancy and maternity protection, parental leave and adoption leave  

Labour  legislation  traditionally  provides  an  extensive  list  of  guarantees  and  special 
arrangements for three groups of employees: 
– 

pregnant workers (pregnant women who submit to their employer a certificate issued by a 
healthcare institution confirming that they are pregnant); 

–  workers who have recently given birth (mothers who submit to the employer a certificate 
confirming that they have given birth and who take care of a child of up to one year old); 
and  
breastfeeding  mothers  (mothers  who  submit  to  their  employer  a  certificate  confirming 
that they are taking care of and breastfeeding a child of up to one year old). 

– 

All three groups of employees must not be assigned to perform work in conditions that may 
be  hazardous  and  may  affect  the  health  of  the  woman  or  the  child.  If  they  have  to  attend 
medical  examinations, they  must  be  released  from  work  for  such  examinations without  any 
loss of average pay. Special paid breaks are foreseen for breastfeeding. The law requires the 
consent of an employee if the employer wishes to assign her to night work (between 10 p.m. 
and  6  a.m.),  to  send  her  on  a  business  trip,  to  work  overtime  or  to  work  on  Saturdays  and 
Sundays  or  on  public  holidays.  There  are  no  specific  rules  prohibiting  discrimination  in 
relation  to  pregnancy  and  maternity,  maternity  leave,  parental  leave,  adoption  leave  and 
paternity leave. The majority of violations would definitely be covered by the general rules on 
non-discrimination in the Labour Code and the EOAWM. 

There is no direct provision prohibiting dismissal on the grounds of an application for, or 
the  taking  of,  parental  leave,  but  the  Labour  Code  includes  a  general  prohibition  on  the 
dismissal of an employee during his/her leave, regardless of the type of leave. The dismissal 
of  a  pregnant  woman  is  prohibited  from  the  day  that  her  employer  receives  the  certificate 
confirming  her  pregnancy  until  one  month  after  her  maternity  leave.  Furthermore,  the 
employment contracts of employees raising a child (children) under the age of three must not 
be  terminated  without  any fault  on  the  part of the employee.  In  addition,  Lithuanian labour 
law provides for a number of procedural requirements and guarantees which are applicable to 
workers with childcare responsibilities. Employees raising children under the age of 14 may 
only  be  dismissed in  exceptional  cases.  Priority  to  retain  a job  shall  be  given  to  employees 
who are raising children in an incomplete family, or have adopted children under the age of 
16. 

The  Labour  Code  grants  pregnant  employees  a  maternity  leave  of  70  calendar  days 
before confinement and 56 calendar days after confinement. Similar rules apply in the case of 
adoption. During maternity leave a worker is entitled to a state social security allowance paid 
by the State Social Insurance Fund. At the end of maternity leave, workers have the right to 
return  to  the  same  job  on  the  same  terms  as  before  the  leave  and  to  benefit  from  the 
improvement of working conditions. The Labour Code also requires the period of maternity 
leave to be taken into account for the determination of the next annual leave. 

Parental  leave  until  the  child  has  reached  the  age  of  three  is  granted  to  the  mother 
(adoptive mother), the father (adoptive father) and also to other relatives. In addition, in case 
of adoption a leave of up to three months can be taken by the adoptive mother or father even 
after the child reaches the age of of three. However, the three months period does not meet the 
minimum  length  of  four  months  set  by  Directive  2010/18/EU.  Parental  leave  and  adoption 
leave  are  granted  at  the  choice  of  the  family  and  may  be  taken  as  a  single  period  or  be 
distributed in parts. However, there are no rules on a non-transferable period of leave. During 
parental leave a parental allowance is paid by the State Social Insurance Fund for a period of 
up to two years. The person concerned retains his/her job, with the exception of cases where 
the  enterprise  has  been  dissolved.  At  the  end  of  parental  leave,  workers  have  the  right  to 
return  to  the  same  job  on  the  same  terms  as  before  their  leave.  Unlike  what  is  stipulated 
regarding maternity leave, there is no explicit provision that the worker shall benefit from any 
improvement in working conditions to which he/she would have been entitled during his/her 
absence  because  of  parental  leave.  In  addition,  the  law  does  not  provide  for  the  minimum 

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non-transferable  period  of  parental  leave  or  adoption  leave,  as  required  by  the  Directive 
2010/18/EU.  

The Lithuanian Labour Code is heavily loaded with other family-friendly arrangements 
which  go  beyond  the  requirements  of  the  directives.  For  example,  paternity  leave  with  a 
paternity allowance is guaranteed for fathers until the child reaches the age of one month. A 
prolonged minimum annual leave of 35 calendar days (whilst the normal minimum leave is 28 
calendar days) is granted to employees who, as single parents, are raising a child. Employees 
raising two children under the age of 12 are entitled to a paid day off and additional unpaid 
leave  and  employees  raising  three  or  more  children  under  the  age  of  12  are  entitled  to  two 
paid  days  off  per  month.  Since  those  labour-law  provisions  on  maternity  and  paternity 
protection  have  a  long  history  they  enjoy  wide  public  acceptance.  The  courts  are  also  very 
active in protecting pregnant women from unfair dismissal despite the fact that the protection 
goes much further than what is required by European legislation.  

4. Statutory schemes of social security  

A person who is awarded a pension may continue to work and receive double income: his/her 
pension and his/her wage. All categories of employees including public servants and higher 
officials are covered by all types of state social security schemes whilst the majority of self-
employed persons are covered by the pension scheme only.  

The EOAWM amendments of 2008 have significantly broadened the scope of application 
of the equal treatment principle which now applies to the state social security schemes in the 
same way and to the same extent as occupational pension schemes (see Section 2), the only 
exception  being  the  different  pensionable  ages.  The  EOAWM  provides  for  a  temporary 
statutory  exception  for  different  pensionable  ages  for  women  and  men.  For  a  long  time  the 
pensionable ages for men  and women were different: 60 for women and 62.5 for men. The 
pensionable age for women has been increased by four months annually from 2012 and for 
men by two months annually, and the retirement age for both men and women will reach 65 
in 2026. One should keep in mind that in Lithuanian labour law, some employees’ guarantees 
(notification  periods  or  priority  to  retain  the  position  where  dismissals  are  concerned)  are 
related to the statutory pensionable age of the workers, which is still different for women and 
men.  

5. Self-employed persons 

The notion of self-employed person (under Lithuanian law, the following are perceived as a 
self-employed person: owners of individual enterprises, members of partnerships, persons in 
registered individual economic activity, persons with business certificates, farmers and their 
partners,  sportsmen  and  artists)  emerges  in  the legal framework  of  taxation  and  state  social 
insurance. The majority of them are persons who are only covered by pension insurance (age, 
disability  and  widows/widowers’  pensions).  Helping  spouses  of  other  categories  of  self-
employed persons and persons treated as such may participate in voluntary social insurance 
schemes.  All  these  persons  may  be  covered  by  pensions  and  sickness  and  maternity  state 
social insurance on a voluntary basis. Still, there are national social schemes granting certain 
services  and  cash  benefits  awarded  to  these  women  regardless  of  their  social  insurance, 
financial situation or professional activity (e.g. birth grants). 

Self-employed persons generally do not fall under the EOAWM and only one provision 
concerning the principle of equality in social security schemes explicitly refers to them. An 
important  gap  is  the  fact  that  there  is  no  specific  provision  prohibiting  discrimination  in 
relation  to  access  to  self-employment  or  occupation,  vocational  training  and  working 
conditions  or  the  establishment  of  self-employed  activity.  The  transposition  of  Directive 
2010/41/EU is highly minimalistic and clearly not sufficient. Section 3 of the EOAWM ‘The 
Duty  of  State  and  Municipal  Institutions  and  Agencies  to  Implement  Equal  Rights  between 
Women and Men’ has been amended to introduce the new obligation of state and municipal 
authorities and institutions to prevent sex discrimination, and was supplemented by the new 

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obligation not to violate the equal rights of women and men when providing administrative or 
public  services.  Since  Directive  2010/41/EU  is  meant  to  govern  all  relations  between  self-
employed  persons  and  their  spouses  with  third  parties,  Lithuanian  law  fails  to  include  the 
relationships with state companies, public bodies or private persons (notaries) etc. within its 
scope.  

6. Goods and services  

The  EOAWM  prima  facie  meets  the  requirements  of  Directive  2004/113/EC  as  it  prohibits 
any  kind  of  discrimination.  The  exceptions  in  the  application  of  the  principle  of  equality 
related to media and education have not been implemented in the EOAWM, but the EOAWM 
is  not  applicable  in  the  sphere  of  private  and  family  life.  The  EOAWM  only  addresses 
relationships  between  consumers  and  salespersons,  producers  and  service  providers,  as  it 
states  that  salespersons,  producers  and  service  providers  must  apply  equal  pay  terms  or 
guarantees  for  the  same  or  equally-valued  products,  goods  and  services  to  all  consumers 
irrespective of their sex. They also have to assure that there will be no humiliation, restriction 
of  rights  or  granting  of  privileges,  or  the  forming  of  any  public  attitudes  towards  the 
superiority of one sex over the other when providing information on their products, goods and 
services or when advertising them. Furthermore, the EOAWM lists discriminatory acts such 
as  granting  different  conditions  of  payment  or  guarantees  for  the  same  and  equally-valued 
goods, services or products or allowing different opportunities for selecting goods; presenting 
information about products, goods and services or advertisements forming the public opinion 
that  one  sex  is  superior  to  another;  discrimination  of  consumers  on  grounds  of  sex;  and 
intimidation  of  a  person  who  has  complained  about  discrimination.  There  will  be  no  direct 
discrimination if the sale of goods or the provision of services to persons of a certain sex or to 
the majority of a certain sex is justified by a legitimate aim, provided that these restrictions 
are  appropriate  and  necessary.  Under  the  Law  on  Insurance,308  insurance  companies  were 
allowed to apply sex-differentiated contribution rates after a risk evaluation within the sphere 
of insurance. With the amendments of 2013309 Lithuanian law now complies with the CJEU 
ruling in Test-Achats.310  

7. Enforcement and compliance aspects 

In case of a violation of the principle of non-discrimination four different types of sanctions 
may be imposed. Criminal sanctions may be imposed following a criminal offence. Serious 
discrimination  on  the  grounds  of  inter  alia  sex  shall  be  punishable  by  community  service 
order,  arrest  or  imprisonment  for  up  to  three  years,  but  there  have  been  no  cases  so  far. 
Administrative fines from EUR 29 (LTL 100) to EUR 1 160 (LTL 4 000) for breach of the 
EOAWM may be imposed by the Equal Opportunities Ombudsperson, but in many cases the 
Ombudsman  issues  a  simple  warning.  The  violation  of  equal  opportunities  for  women  and 
men  or  the  sexual  harassment  of  colleagues,  subordinates  or  customers  may  (but  not 
necessarily  shall  –  this  is  left  to  the  employer  to  decide)  result  in  disciplinary  sanctions 
imposed on the related employee, e.g. dismissal.  

The  rules  on  the  judicial  enforcement  of  rights  are  no  less  favourable  than  those 
governing  similar  domestic  actions.  In  cases  of  discriminatory  refusal  or  dismissal 
compensation may be awarded but the court is free not to reinstate the employee. In the case 
of  financial  claims  by  an  employee,  the  court  may  grant  the  employee  payment  of  interest 
when  the  employer  has  breached  financial  duties:  0.06  %  interest  per  day  of  delay.  In 
addition,  in  all  labour  cases  the  court  may  award  financial  compensation  for  non-material 

308  State Gazette, 2003, No. 94-4246. 
309  State Gazette, 2013, No. 46-2247. 
310  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.   

162  

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damage  caused  by  discrimination.  The  compensation  for  non-material  damage  has  no 
maximum  amount.  However,  the  courts  are  reluctant  to  award  high  compensation  for  non-
material  damage.  For  example,  for  the  discriminatory  refusal  to  employ  Roma  women  as 
waitresses in a bar, the employer was obliged to pay compensation of approximately 2½ times 
the minimum wage for non-material damage instead of employment.  

The  EOAWM  contains  a  provision  on  the  reversal  of  the  burden  of  proof  while 
examining complaints or disputes between persons arising from discrimination on the ground 
of  sex.  This  rule  has  to  be  applied  in  the  civil  courts  of  general  competence  or  in  the 
Commissions on Individual Labour Disputes. If there is a dispute in the administrative courts 
involving public servants, the rule on the reversal of the burden of proof shall also be invoked. 
However, the Highest Administrative Court has rejected the right of the Equal Opportunities 
Ombudsman  to  shift  the  burden  of  proof  to  the  accused  employer  in  a  procedure  of 
investigation of a complaint by the Office of the Ombudsperson.  

Access  to  the  courts  is  generally  safeguarded  for  alleged  victims  of  discrimination  but 
cases  are  very  rare.  Since  2008  the  EOAWM  allows  the  victim  to  be  represented  in 
administrative procedures and court proceedings by organisations of workers and employers 
and by other legal persons having a legitimate interest. This right for NGOs has recently been 
confirmed by the Higher Administrative Court, which will improve the possibility of defence 
of  the  rights  of  victims.  However,  cases  regarding  discrimination  on  the  grounds  of  social 
origin, nationality or age have started to dominate the poor landscape of discrimination cases. 
The  Office  of  Equal  Opportunities  Ombudsman  as  an  independent  state  institution 
supervises  the  implementation  of  both  the  EOAWM  and  the  EOA.  The  Office  investigates 
complaints,  supervises  the  implementation  by  the  public  institutions  and  employers,  hears 
cases  of  administrative  offences  and  imposes  administrative  sanctions,  consults  victims  of 
discrimination, assists public organisations and NGOs, collects, analyses and summarises data 
on equal opportunities in Lithuania, submits recommendations, etc. 

The impact of the social partners in the promotion of gender equality is rather weak. The 
social partners do not attempt to explain or promote the principle of equality unless there is a 
focused  initiative  sponsored  by  European  funds.  Collective  agreements  are  binding,  but  the 
impact  of  collective  bargaining  in  promoting  equal  opportunities  is  less  than  fractional. 
Inclusion of these issues into the agenda of collective bargaining is not strived for by either of 
the parties: for employees it is more desirable to at least have a collective agreement on wages 
or other working conditions than to consider gender equality issues which are, according to 
both parties, believed to be the task of state authorities or to be irrelevant.  

8. Overall assessment  

The  formal  implementation  of  the  EU  gender  equality  directives  in  Lithuania  is  considered 
satisfactory.  National  legislation  has  traditionally  been  heavily  loaded  with  guarantees  for 
women  and  persons raising  children,  which is  why  it  is  not  difficult  to  maintain  a  formally 
women-friendly  environment.  However,  there  are  significant  gaps  related  to  more 
sophisticated  questions,  such  as  coverage  of  self-employed  persons  or  practical 
implementation  of  non-discrimination  legislation.  Despite  the  great  political  attention  the 
practical implementation of the principle of equality at the workplace is rather weak: only a 
few  cases  have  been  brought to court, the  issue  has  not received  any  special  attention from 
social  partners  and  it  definitely  is  not  among  the  priorities  of  individual  employees  and 
employers.  Employees,  trade  unions  and  even  lawyers  are  reluctant  to  use  the  powerful 
instruments  offered  to  them  by  the  national  legislation  transposing  EU  law.  The  rare  EU-
funded  state  initiatives  and  the  initiatives  by  the  social  partners  are  insufficient  to  promote 
real enforcement of equality rights. NGO activities are fragmental and limited to surveys and 
public campaigning only.  

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LUXEMBOURG – Anik Raskin 

1. Implementation of central concepts 

Usually,  Luxembourg  national  law  reproduces  the  definitions  given  by  EU  law.  Generally 
speaking, 
to  one’ 
implementation approach of EU law. 

the  Luxembourg  Government  has  adopted 

the  so-called  ‘one 

The  concepts  of  direct  and  indirect  discrimination  as  well  as  those  of  harassment  and 
sexual  harassment  are  literally  reproduced  in  national  legislation  transposing  EU  gender 
equality  law.  Sexual  harassment  at  the  workplace  was  introduced  at  the  national  level  in 
2000311.  Since  then  it  is  laid  down  by  law  that  employers  have  to  abstain  from  any  sexual 
harassment  in  employment  relationships.  Employers  also  have  to  take  care  that  any  act  of 
sexual  harassment  of  which  they  are  informed  ceases  immediately  and  they  have  to  take 
preventive measures to ensure the protection and the dignity of their employees. In the case 
L’Estrade c/Barthelemy c/Etat,312 the Supreme Court of Justice (Cour Supérieure de Justice) 
recognised  the  employer’s  responsibility  for  acts  by  his  manager,  arguing  that  the  manager 
was  the  physical  representative  of  the  employer.  Case  Rausch  c/Luxair313  of  the  Supreme 
Court  of  Justice  maintains  that  the  employer  is  not  obliged  to  start  a  formal  investigation 
before suspending a worker who is accused of having engaged in sexual harassment. 

Even if the concept of harassment was mentioned by law previously, no definition was 
provided  until  the  adoption  of  the  Law  transposing  Directive  2002/73/EC  (equal  treatment 
between  men  and  women  in  employment)  on  30 April  2008.314  On  29  March  2007,  the 
Supreme  Court  of Justice  considered,  arguing  that  since  the  concept  of  harassment  was  not 
defined  in  national  labour  law,  it  was  advisable  to  refer  to  the  definition  in  Directive 
2000/78/EC.  Furthermore,  the  judgment  determined  that  it  is  up  to  the  worker  to  provide 
proof  of  the  components  of  harassment.  The  Supreme  Court  of  Justice  therefore  referred 
exclusively  to  the  definition  of  harassment  given  by  the  Directive  without  considering  its 
provisions as regards the burden of proof.  

Since  July  2006,  the  Luxembourg  Constitution  includes  the  provision  that  women  and 
men are equal regarding rights and duties and that the State promotes the elimination of any 
obstacles  in  the  field  of  equality  between  women  and  men.315  Although  positive  actions 
previously existed, the adoption of this provision provides a legal basis for those actions. In 
this  area,  the  Ministry  of  Equal  Opportunities  has  developed  a  programme  in  order  to 
encourage  private  enterprises  to  adopt  projects  on  equality  between  women  and  men.  The 
programme on positive actions was extended to the public sector in late 2011. The first results 
of this extension were presented in 2012. These positive actions are exclusively intended to 
promote  the  under-represented  sex  on  the  labour  market.  The  Minister  in  charge  of  gender 
equality  has  announced  a  modification  of  the  legal  framework  for  positive  actions,  without 
giving any further details yet. 

The  current  legal  framework  for  positive  actions  consists  of  Article  L.243-1  to  Article 
L. 243-5  of  the  national  Labour  Law.  Positive  actions  are  defined  as  concrete  measures 
granting specific advantages in order to facilitate the exercise of a professional activity by the 
under-represented  sex  or  to  prevent  or  compensate  disadvantages  in  the  professional  career 
path. Positive action projects can relate to either one or more companies, or to a sector or an 
economic branch. The State subsidises the agreed private projects. 

The  Labour  Law  also  contains  provisions  that  allow  employers  to  obtain  financial 
support when they employ people of the under-represented sex. According to Article L.242-1 
the under-represented sex in a profession is considered to be the sex whose representation is 

311  Labour Code Article L.244-1. – Article L.245-8. 
312  C.S.J. 30 January 2003 No. 26327. 
313  C.S.J. 29 June 2006 No. 30051. 
314  http://www.legilux.public.lu/leg/a/archives/2008/0070/a070.pdf#page=2, accessed 2 June 2014. 
315  Article 11(2) of the Constitution. 

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equal  to  or  lower  than  40 %  of  the  total  workforce  in  this  occupation  at  the  national  level. 
Moreover,  according  to  Article  L.242-3  employers  may  implement  specific  advantages  in 
order  to  facilitate  the  activity  of  the  workers  of  the  under-represented  sex  or  to  prevent  or 
compensate disadvantages in their professional career path.  

Instruction to discriminate on the ground of gender constitutes discrimination. Provisions 
reproducing the terms of EU law have been implemented in all the laws on equal treatment 
between women and men. In this regard, Luxembourg law complies with EU law. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
On 10 July 1974 equal pay for women and men for the same work or for work to which equal 
value  is  attributed  was  introduced  by  Grand  Duchy  Regulation.  Remuneration  includes  the 
wages or the basic or minimum ordinary salary and all other direct or indirect advantages and 
benefits,  in  cash  or  in  kind,  paid  by  the  employer.  Since  then  provisions  appearing  in 
collective agreements, wage scales, wage agreements or individual contracts of employment 
which are contrary to the principle of equal pay have been declared null and void. The highest 
remuneration is automatically substituted when pay is not equal.  

According  to  the  amended  Law  of  12  June  1965  on  collective  agreements,  the  social 
partners have to envisage in any collective agreement the application of the principle of equal 
pay between women and men. 

first 

judgment 

The question concerning the direct effect of European legislation was placed before the 
Luxembourg  courts.  The 
(Bank  M.M.  Warburg-Brinckmann  Wirtz 
International  c/  Pagani)  on  this  matter  was  delivered  by  the  Cour  d’Appel  de  Luxembourg 
(Court of Appeal of Luxembourg) on 21 April 1982. This judgment substantially adopts, once 
again, the terms of the Defrenne II judgment 316 by the CJEU by saying that Article 119 of the 
EEC Treaty (now 157 TFEU) applies directly without European or national measures being 
necessary  for  its  implementation.  The  question  addressed  by  the  Court  was  to  determine 
whether  a  household  premium  constituted  an  advantage  paid  directly  or  indirectly  to 
employees.  The  Court  determined  that  the  premium  was  to  be  considered  as  remuneration 
within the meaning of Article 119 of the EEC Treaty (now 157 TFEU), ILO Convention No. 
100 and the Grand Duchy Regulation from 1974. This judgment reinforced the Grand Duchy 
Regulation of 1974, which ranks lower in the legal hierarchy. 

On  28  March  1991,  the  Court  of  Appeal  of  Luxembourg  decided  in  Laroche  c/ 
Administration communale de Pétange that it is sufficient to establish a difference in wages 
between female and male workers engaged in the same cleaning service. The employer had 
argued that the difference in wages between women and men workers was justified by the fact 
that  male  workers  were  likely  to  be  engaged  in  more  strenuous  tasks  than  female  workers. 
Since this decision there has been no further significant case law on the issue. 

The  Government  programme  presented  in  December  2013  announced  a  new  legal 

framework on equal pay. No concrete project has been presented yet. 

2.2. Access to work and working conditions 
As the Recast Directive 2006/54 has not been implemented by a specific law, one must refer 
to the Law of 13 May 2008, which implemented Directive 2002/73/EC. 

Regarding  access  to  employment,  a  difference  in  treatment  based  on  a  characteristic 
related to sex does not constitute discrimination within the meaning of the law when, because 
of  the  nature  of the  particular  activities  concerned  or  their  framework,  such  a  characteristic 
constitutes  an  essential  and  determining  professional  requirement.  The  objective  has  to  be 
legitimate  and  the  requirement  proportional.  The  exceptions  in  the  Recast  Directive  were 
already covered in national law. This means that national law is in compliance with EU law. 

316  Case C-43/75 Defrenne v Société Anonyme Belge de Navigation Aerienne. (SABENA) [1976] ECR 455, [1976] 

2 CMLR 98 a.k.a. Defrenne II. 

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165 

 
 
 
 
 
 
 
 
 
 
                                                      
2.3. Occupational pension schemes 
The  legal  framework  for  occupational  pension  schemes  is  provided  by  the  Law  of  8 June 
1999. Self-employed persons pay their contributions on the same basis as workers and have 
the same pension rights.  

Occupational  pension  schemes  which  contain  regulations  that  are  contrary  to  the 
principle of equal treatment between women and men are declared null and void. Article 16 of 
this  Law  is  an  exact  and  complete  reflection  of  Article  6  of  Directive  96/97/EC  on  the 
implementation of the principle of equal treatment for men and women in occupational social 
security schemes, meaning that different levels of benefits are allowed, insofar as they may be 
necessary to take account of actuarial calculation factors which differ according to sex.  

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  protection  of  pregnant  workers  and  workers  who  have  recently  given  birth  or  are 
breastfeeding was reformed by the Law of 1 August 2001.317 

According to this Law, pregnant workers cannot be required to work in the eight weeks 
preceding  the  expected  date  of  confinement.  Also,  workers  cannot  be  required  to  work  for 
eight weeks following childbirth. The total duration of maternity leave, however, can exceed 
16 weeks. This is the case, for example, when the birth takes place after the expected date. 
  Maternity leave is granted on the basis of a medical certificate and is treated as a period 
of sick leave. In Luxembourg, absence from work on grounds of sickness is fully paid. Social 
security schemes and labour law both remain applicable. 

During maternity leave, the employee’s job has to be preserved. The dismissal of workers 
is  prohibited  throughout  the  period  from  the  beginning  of  their  pregnancy  to the  end  of the 
maternity leave. 
  Workers are entitled to two 45-minute breaks per working day if they are breastfeeding 
after maternity leave. 

Parental  leave  was  introduced  by  law  in  1999.318  According  to  this  Law,  workers  who 
have worked in Luxembourg for at least twelve months at the time of the birth of their child 
are entitled to parental leave.  

Parental leave is an individual right and cannot be transferred from one working parent to 

the other. The overall monthly parental allowance is paid by the State.  

There  are  two  types  of  paid  parental  leave.  Full-time  parental  leave  is  six  months  and 
cannot be refused by the employer. Part-time parental leave is twelve months and relies on the 
employer’s agreement. Throughout parental leave, employment relationships are maintained 
and the worker is entitled to reinstatement or, in the event that this is impossible, similar work 
corresponding  to  his/her  qualifications  must  be  provided  with  equivalent  remuneration. 
Workers  who  do  not  fulfil  the  condition  of  duration of  work  in  order to  be  entitled  to  paid 
parental leave are now entitled to an unpaid parental leave of 3 months. 

As the social partners did not issue an opinion on the implementation of the Directive, the 
Government  decided  to  adapt  the  current  legislation  in  order  to  comply  with  the  Directive 
without such opinion. Parental leave legislation was modified by the law of 19 June 2013.319 
This law extends the unpaid parental leave from 3 to 4 months. It also implements Clause 6(1) 
by introducing a right to request changes to her/his working hours and/or patterns for workers 
when  they  return  from  parental  leave.  Employers  have  to  give  their  response  taking  into 
account both the employer’s and the worker’s needs. In case of a positive reply, the period of 
the changes is limited to a period of one year. 

The  dismissal  of  workers  when  on  parental  leave  is  prohibited.  The  Supreme  Court  of 
Justice  stated320  that  if  the  employer  proves  that  it  is  impossible  to  reinstate  the  worker  in 

317  http://www.legilux.public.lu/leg/a/archives/2001/0102/a102.pdf#page=2, accessed 2 June 2014. 
318  Labour Code Article L.234-43 – Article L.234-49. 
319  http://www.chd.lu/wps/PA_RoleEtendu/FTSByteServingServletImpl/?path=/export/exped/sexpdata/Mag/

140/213/123192.pdf, accessed 2 June 2014. 

320  Judgment C.S.J. 7 June 2007 No. 31422. 

166  

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his/her  original  work,  he  can  propose  other  work,  even  if  this  is  of  a  different  kind.  In  the 
relevant court case, the worker concerned had refused the proposed new work, in particular 
because  of  less  favourable  career  expectations,  which  was  not  proved.  The  contested 
dismissal was declared valid. 

In  another  case  concerning  a  dismissal,  the  Supreme  Court  of  Justice  held  that  the 
prohibition of dismissal does not exclude a dismissal due to the reorganisation of the company 
involving  the  removal  of  the  work/position  where  the  employee  worked  before  his  parental 
leave.321 After the period of protection during parental leave, a dismissal due to these reasons 
remains  valid.  The  worker  in  question  had  been  dismissed  on  the  day  after  the  end  of  her 
parental leave. 
Paternity leave is a short period of mandatory leave for fathers.322 The duration of the leave 
granted to male employees for the birth of a legitimate or a legally recognised child born out 
of marriage is 2 days. It is part of the so-called ‘leaves for personal reasons’ and has the same 
effect as the normal annual leave. 

In  case  of  adoption  of  a  child  under  the  age  of  16,  the  employee  has  an  unconditional 
right to 2 days of leave (similar to the paternity leave).323 If the adopted child is too young to 
be admitted to the first year of primary school, the adoption leave is extended to 8 weeks for a 
single adoption and 12 weeks for a multiple adoption.324 The leave cannot be refused by the 
employer  but  must  be  requested.  Only  one  of  the  adoptive  parents  is  entitled  to  take  the 
adoption leave. However, both of the adoptive parents are entitled to take parental leave. 

Single adoptive parents are entitled to adoption leave on the condition that the adopted 

child has not already lived together with him/her before the adoption.325 

Adoptive  leave  has  the same  effects as  maternity  leave.  During  the  adoption  leave,  the 
employee receives maternity benefits, which are paid by the State. The employment contract 
remains  intact  during  the  leave  and  the  employer  has  to  keep  the  same  or  a  similar  job 
available  during  the  leave.  On  return  to  work,  there  is  no  guaranteed  right  to  improved 
working  conditions.  The  adoption  leave  is  taken  into  account  for  seniority  and  related 
benefits. It is also taken into account for the calculation of the legal annual leave. 

The  employee  on  adoption  leave  is  protected  against  dismissal  during  the  period  of 
adoption  leave.  If  the employee  does  not  want  to  go back  to  work  after the adoption  leave, 
he/she may resign without notice at the end of the leave. 

Current  legislation  in  Luxembourg  meets  the  EU  standards,  with  the  exception  of  the 

current legislation on parental leave, which is about to be amended, however. 

4. Statutory schemes of social security  

The principle of equal treatment between women and men in matters of social security was 
introduced by the Law of 15 December 1986.  

This Law concerns workers, self-employed persons as well as workers and self-employed 
persons  whose  activity  is  interrupted  by  illness,  accident  or  involuntary  unemployment  and 
persons seeking employment. Retired or incapacitated workers and self-employed persons are 
also  covered.  The  pensionable  age  is  the  same  for  women  and  men  (65).  No  sex-specific 
advantages  are  granted.  In  fact,  certain  advantages  related  to  children’s  education  mainly 
favour women since they are still the ones who assume this role. 

Bill  No.  5155  reforming  divorce regulations  has  been  pending  since  May  2003.  One  of 
the  aims  of  this  legislative  project  is  to  introduce  the  splitting  of  pension  rights  by  civil 
judgment. NGOs have insisted that splitting pension rights should be mandatory and regulated 
by social law.  

321  Judgment C.S.J. 6 December 2007 No. 32095. 
322  Code du Travail (Labour Code), Article L.233-16.-1. 
323  Code du Travail (Labour Code), Article L.233-16.-6. 
324  Code du Travail (Labour Code), Article L.234-55 (1). 
325  Code du Travail (Labour Code), Article L.234-55 (2). 

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167 

 
 
 
 
 
 
 
 
 
 
                                                      
The  compliance  of  national  legislation  with  EU  law  should  be  analysed  in  this  area  in 

order to identify possible gaps. 

5. Self-employed persons  

There is no  specific law  in  Luxembourg  on  self-employed  persons  and  their  treatment. The 
concept  of  ‘self-employed  person’  is  defined,  however  (social  security  scheme  –  Act  on 
Social  Insurance),  which  implies  that  self-employed  persons  are  protected  against  sex 
discrimination insofar as these specific laws grant such protection. 

Self-employed persons have the same rights as employees regarding maternity leave. 

6. Goods and services 

On 18 December 2007, Parliament adopted the Law that transposes Directive 2004/113/EC. 
The Law entered into force on 21 December 2007. 

According  to  this  Law,  discrimination  between  women  and  men  is  prohibited  in  the 
access to and supply of goods and services which are available to the public and which are 
offered  outside  the  area  of  private  and  family  life.  This  prohibition  does  not  apply  to 
education. 

The  Law  establishes  platforms  of  dialogue  between  the  Ministries  concerned  and  the 
entities having a legitimate interest in contributing to the fight against discrimination based on 
sex. 

The Law allowed the use of sex as a factor in the calculation of premiums and benefits 
for  the  purposes  of  insurance  where  the  use  of  that  criterion  is  a  determining  factor  in  the 
assessment of risk based on relevant and accurate actuarial and statistical data. This has been 
changed in order to comply with judgment of the European Court of Justice in Test-Achats.326 
For contracts concluded after 20 December 2009, the expenses related to pregnancy and 

maternity cannot result in differences in insurance premiums and benefits.  

This is one of the few examples where Luxembourg legislation exceeds the requirements 

of EU law, as the law also applies to media and advertising since the reform of 2012. 

On  25  July  Bill  No.  6454,327  which  aims  to  amend  the  law  transposing  Directive 
2004/113/EC in order to comply with the judgment in Test-Achats of the Court of Justice of 
the European Union, was presented to Parliament.328 The legislative process is still on-going. 

7. Enforcement and compliance aspects 

As mentioned, the Luxembourg legislator usually implements EU law by adopting the text of 
the  latter.  As  a  result,  Luxembourg  equality  law  generally  meets  European  standards.  This 
minimalist approach also implies that the national provisions seldom go beyond the minimum 
level as contained in the European directives. 

Regarding victimisation, national equal treatment law guarantees protection from adverse 
treatment for complainants as well as for witnesses. This also applies to the field of the access 
to and supply of goods and services as well as to work and employment. 
  Directive 97/80/EC on the burden of proof in cases of discrimination based on sex was 
implemented  by  a  law  in  2001.  This  Law,  of  28  June  2001,  deals  with  direct  and  indirect 
discrimination based on sex. The Law applies to civil-law proceedings and the administrative 
procedure  concerning  the  public  or  private  sector  in relation  to  access  to  employment,  pay, 
professional  promotion,  access  to  independent  work,  working  conditions  and  occupational 

326  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.   

327  http://www.chd.lu/wps/PA_RoleEtendu/FTSByteServingServletImpl/?path=/export/exped/sexpdata/Mag/

133/165/113624.pdf, accessed 2 June 2014. 

328  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

168  

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social security schemes. According to this Law, respondents have to prove that there has been 
no  violation  of  the  principle  of  equal  treatment  between  women  and  men  if  claimants 
establish,  before  the  court  or  another  competent  authority,  facts  from  which  it  may  be 
presumed  that  there  has  been  direct  or  indirect  discrimination.  Since  2007,  the  same  rules 
apply in the field of the access to and supply of goods and services. 
  According  to  EU  gender  equality  law,  remedies  and  sanctions  have  to  be  effective, 
proportionate  and  dissuasive.  Luxembourg’s  gender  equality  law  contains  several  specific 
provisions in the event of discrimination based on sex. In the event of a dismissal, the worker 
can  call for the  dismissal to  be  nullified  in  order to  retain  his/her job,  or  if  necessary  to  be 
reinstated. Concerning job offers, any person who makes an offer which is not in conformity 
with the principle of equality between women and men is punishable by a fine of EUR 251 to 
2 000. 

 The  Law  transposing  Directive  2004/113/EC  implementing  the  principle  of  equal 
treatment  between  men  and  women  in  the  access  to  and  supply  of  goods  and  services  has 
introduced an innovative provision by allowing victims to choose between a fixed allowance 
(EUR 1 000) and covering the damage actually suffered as regards moral harm. The second 
option implies that the claimant will bear the burden of proof.  

Regarding  access  to  court,  it  is  worth  underlining  that  non-profit  associations  and  trade 
unions  can,  on  certain  conditions,  engage  in  proceedings  on  behalf  or  in  support  of  any 
victim. Associations can do so in the field of work and employment as well as in the field of 
the access to and supply of goods and services. Trade unions can only do so in the field of 
work and employment. Associations should obtain ministerial approval, which will be given 
on certain conditions determined by law. 
  No specific body exists regarding gender equality. A national equality body, the Centre 
for  Equal  Treatment  (Centre  pour  l’égalité  de  traitement)  was  established  by  law  on  28 
November 2006. The Centre for Equal Treatment is concerned with discrimination based on 
race and ethnic origin, disability, age, religion or belief, sexual orientation and sex. The CET 
is directed by a board of five members who are appointed by Parliament.  

The  Women’s  Labour  Committee  (Comité  du  Travail  Féminin)  consists  of  women’s 
NGOs,  employers’  and  workers’  organisations  and  ministries.  This  advisory  body  is 
responsible  for  studying,  either  on  its  own  initiative  or  at  the  Government’s  request,  all 
matters  connected  with  the  work,  training  and  professional  advancement  of  women.  This 
Committee constitutes a very good platform for exchanges between the various actors in the 
field of gender equality.  

Social  partners  can  negotiate  collective  agreements  which  can  be  declared  a  general 
obligation. In that case, the sectors concerned must obey the rules thus laid down. The checks 
carried out before a general obligation is declared relates to the form and not to the content of 
the deposited agreement. 
  Any provision which is contrary to the principle of equality between women and men is 
formally  prohibited.  Collective  agreements  must  include  the  principle  of  equal  pay  and 
methods  to  prevent  sexual  and  moral  harassment.  It  can  be  considered  regrettable  that  the 
elaboration of equality plans does not appear among the obligatory measures imposed on the 
social partners.  

In fact, the legal provision including the obligation to refer to the results of negotiation on 
various  matters,  such  as  the  application  of  ‘equality  plans  of  women  and  men’,  can  be 
considered  as  not  very  effective  because  the  social  partners  mostly  comply  with  this  by 
mentioning that the matters have been discussed. A  few  exceptions  to  the  above-mentioned 
principle  can  be  highlighted,  however.  On  the  one  hand,  the  provisions  as  regards  parental 
leave and maternity leave are beyond the minimum required by EU law. On the other hand, 
one may note that certain texts envisage extensive consultation and dialogue mechanisms with 
civil society.  

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8. Overall assessment 

Generally,  Luxembourg  complies  with  the  implementing  provisions,  although  certain 
adaptations  are  sometimes  necessary.  It  is  regrettable,  however,  that  the  European  general 
framework is rarely exceeded at the national level.  

It seems that the concern for promoting equality between women and men has decreased 
in Luxembourg in recent years. As is true for the European level, one can discern a tendency 
to  gather  together the  various  grounds for  discrimination in  political  actions. This  approach 
results in much confusion.  

Considering  that  equality  between  women  and  men  is  a fundamental  EU  principle, it  is 
important to reinforce this principle. Action could consist of reinforcing the principle of equal 
pay  for  example.  More  than  fifty  years  of  dealing  with  this  matter  have  certainly  brought 
improvement, but the pay gap between women and men remains. As a concrete measure, one 
could  consider  introducing  an  obligation  to  establish  gender  equality  plans  within  the 
framework  of  collective  agreements.  Such  plans  should  include  measures  such  as  data 
collection, follow-up activities and regular evaluation and adaptation. 

FORMER YUGOSLAV REPUBLIC OF MACEDONIA – Mirjana Najcevska 

1. Implementation of central concepts 

The principle of equality is guaranteed by the Constitution of the former Yugoslav Republic 
of  Macedonia  (Article  9).  A  list  of  circumstances  in  which  the  freedoms  and  rights  of  the 
individual and the citizen may be limited specifies that a limitation must not be discriminatory 
based  on  sex,  race,  colour  of  skin,  language,  religion,  national  or  social  origin,  property  or 
social status (Article 54). 

The  basic  anti-discrimination  law  is  the  Law  on  prevention  and  protection  against 
discrimination,  in  force  since  1  January  2011.  The  concepts  of  direct  and  indirect 
discrimination, instruction to discriminate and harassment and sexual harassment are present 
in the legislation. The definitions are in line with EU law definitions. The concept of positive 
action is also introduced in the Law on prevention of and protection against discrimination.  
According  to  its  Article  13,  affirmative  actions  that  are  justifiable  and  are  taken  by  the 
authorities,  administration,  bodies  of  local  self-government,  and  public  institutions  and 
persons  will  not  be considered as  discrimination  until  factual equality  is reached.  The  main 
law  dealing  with  equality  between  men  and  women  is  the  Law  on  Equal  Opportunities  for 
Women and Men. The first version of this Law was adopted in 2006  and it was changed in 
2008.    The  Law  was  never  actually  implemented  (not  enforced  in  more  detailed  measures) 
and has not produced any visible changes in the field of gender equality. In January 2012, the 
former  Yugoslav  Republic  of  Macedonia  adopted  the  new  Law  on  Equal  Opportunities  for 
Women  and  Men  in  spite  of  numerous  comments  and  concerns  raised  during  the  public 
debate  (organised  only  after  the  Draft  Law  had  entered  the  parliamentary  procedure). 
According  to  the  introducer  of  the  Draft  Law,  unlike  the  previous  Law  on  Equal 
Opportunities for Women and Men, the new law includes obligatory provisions. Furthermore, 
the Draft Law transposes three EU Directives: 2002/73/EC, 2000/78/EC and 2004/113/EC. 

The  Government  is  continuously  adopting  new  strategies,  action  plans  and  annual 

operational plans for the implementation of action plans.329  

On  27  April  2014,  early  parliamentary  elections  were  held  in  the  former  Yugoslav 
Republic  of  Macedonia.  The  underrepresentation  of  women  during  the  elections  and  some 
problems related to voting practices remain in spite of the clear legal obligations.  
  Women did not have factual visibility (they were not perceived as a specific vulnerable 
group) during the elections and gender-related discrimination was not treated as a significant 

329  http://www.mtsp.gov.mk/?ItemID=BD66FCC3A7FBCB47AB9150CBFECD2C96, accessed 2 June 2014. 

170  

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issue  in  the  political  parties’  campaign  activities.  Most  of  the  political  parties  did  include 
gender-related activities in their programmes (except DPA – one of the main ethnic Albanian 
parties).  On  18  March  2014,  a  declaration  condemning  hate  speech  and  discriminatory 
language against women, lesbians, gay  men, bisexuals, transsexual people and marginalised 
communities was signed by several political parties (among which was the main opposition 
party  SDSM,  but  not  the  main  governing  party  VMRO-DPMNE).  According  to  the 
preliminary  findings  and  conclusions  of  the  International  Election  Observation  Mission 
(IEOM),  ):  ‘Gender  representation  criteria  were  respected  in  the  election  administration 
bodies. As per legal requirements, every third candidate on parliamentary candidate lists was 
reserved  for  the  less  represented  gender.  However,  women  were  underrepresented  in  rallies 
observed  by  the  OSCE/ODIHR  EOM,  and  gender  issues  were  not  raised  in  campaign 
programmes.’330  

Gender-based budgeting is part of the Strategy for Gender Equality 2013-2020.  So far it 
has been implemented as a pilot activity in several ministries, which should have submitted a 
budget statement at the beginning of 2014. However, NGOs claim a lack of transparency of 
the  whole  process,  a  lack  of  monitoring  tools,  and  a  lack  of  visibility  of  budget  changes  in 
pilot  institutions.  The  main  problem  is  the  enormous  gap  between  legislation  and  its 
implementation.  Some  practical  steps  are  contrary  to  the  general  legislative  intention.  For 
example, among basic measures in the Law on Equal Opportunities for Women and Men is 
education on equal opportunities. However, in the new (2014-2015) academic year instead of 
Gender Studies (temporarily closed), a new programme is now offered at the University: ‘Sn 
Cyril  and  Methodius’  –  Family  studies.  This  new  programme  promotes  traditional  family 
values and traditional gender roles.  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The  definition  of  ‘pay’  introduced  in  the  Directive  (Article  2(e))  is  included  in  the  Labour 
Law  and  corresponds  with  the  definition  in  Article  2(e).  Article  108  of  the  Labour  Law 
contains a special and explicit provision concerning equal remuneration for men and women, 
providing that ‘an employer has a duty to determine equal remuneration for men and women 
for  the  same  kind  of  work  or  work  of  equal  value.’    According  to  the  same  Article,  all 
provisions in a contract for employment or in a collective contract, and general actions of the 
employer  that  deviate  from  this  rule  will  be  annulled.  The  equal  pay  provisions  under  the 
Labour Law are also applicable to civil servants. 

However,  there  is  a  large  gap  between  the  formal  recognition  of  the  principle  of  equal 
pay  and  its  implementation  in  practice  and  so  far  no  claims  have  been  brought  before  the 
courts. With the amendments to the Law on Minimum Wage, adopted in February 2014, the 
difference  still  remains  between  the  minimum  wage  in  the  textile  industry  and  all  other 
sectors.  Employees in the textile industry (mainly women) will continue to receive 10 % less 
than all other workers. 

2.2. Access to work and working conditions 
The Recast Directive has been partly transposed in Macedonian legislation. The transposition 
is  mentioned  and  could  be  directly  connected  to  the  Labour  Law  (as  the  wording  of  the 
Directive could be recognised in the Labour Law)  and the Law on Employment and Social 
Protection  during  Unemployment  (Employment  Law).  With  the  changes  made  to  the 
Employment Law in 2010 two new articles were introduced according to which: 
– 

everybody has the right to access to employment without any restrictions according to the 
principle of equal treatment included in the Labour Law and other laws; and  

330  http://www.osce.org/odihr/elections/fyrom/118078?download=true, accessed 2 June 2014. 

http://www.most.org.mk/images/MOST/Preliminarna%20izjava_vtor%20krug_28.04.2014_ENG.pdf, accessed 
2 June 2014. 

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– 

in  case  of  direct  and  indirect  discrimination  the  citizen  has  the  right  to  demand 
compensation, and the burden of proof is on the employer. 

The  general  non-discrimination  Article  in  the  Labour  Law  encompasses  selection  criteria, 
recruitment  conditions,  and  treatment  at  work,  promotion,  professional  training  and  other 
benefits, as well as termination of employment.  A specific ban on discrimination in vacancy 
announcements  is  regulated  by  Article  24  of  the  Labour  Law  (the  only  exception  is  on  the 
ground of sex). 

The protection provided by this Law covers all aspects of working life and includes all 
types  of  employment  relationships  (both  in  the  private  and  in  the  public  sector).  The 
protection also covers civil service relationships. Furthermore, equality legislation applies to 
employees who are deployed to work in Macedonia by an employer who has no seat in the 
former  Yugoslav  Republic  of  Macedonia.  Exceptions  are  only  allowed  if  the  sex  of  the 
worker is an indispensable precondition for performing the work or service. 

Contrary to Article 9 of the Recast Directive, according to the main pension legislation, 

there are different retirement ages for men and women (62 versus 64 respectively). 

2.3. Occupational pension schemes 
The  pension  system  in  the  former  Yugoslav  Republic  of  Macedonia  is  composed  of  three 
pillars  established by  three  laws: the  Law  on  Pension  and  Disability  Insurance, the  Law  on 
Mandatory Fully-Funded Pension Insurance, and the Law on Voluntary Fully-Funded Pension 
Insurance. The composition of this three-pillar system was introduced in 2000.  The model is 
based on the World Bank’s advice, and it is different from the pillars in the EU countries. 

The  first  pillar  is  the  universal  social  security  fund,  a  ‘pay  as  you  go’  type,  which  is 
obligatory  for  persons  in  an  employment  relationship  and  for  self-employed  persons.  The 
second pillar is a mandatory and fully-funded pension fund with defined contributions which 
are  allotted  to  individual  accounts  organised  by  licensed  pension  insurance  companies.  The 
third pillar includes supplementary voluntary pension schemes,  and covers both domestic and 
foreign citizens between the ages of 18 and 70, regardless of their employment status, on a 
voluntary basis. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Pregnancy,  maternity  and  parental  rights  are  regulated  by  the  Labour  Law.  The  same 
conditions apply in the case of adoption, commencing on the date of the child’s adoption. 
  Maternity  protection  mainly  complies  with  EU  requirements.  On  23  January  2013,  the 
Official Gazette published the Law Amending the Law on Labour Relations (Amendments) 
concerning  protection  of  pregnancy,  birth  and  parenthood.  On  30  December  2013,  without 
any  broader  and/or  public  debates,  Parliament  adopted  amendments  to  the  Labour  Law 
concerning  prolonged,  unpaid  parental  leave  of  a  maximum  of  three  months  until  the  child 
reaches  the  age  of  three.  In  spite  of  the  title  including  the  term  ‘parental’,  this  leave  only 
relates  to  women.  The  newly  added  Article  170-a  of  the  Labour  Law,  entitled  ‘Unpaid 
Parental  Leave’,  states  that  only  ‘the  female  worker’  has  the  right  to  use  this  additional 
parental leave. This formulation therefore prevents the father from using this prolonged leave 
despite the general title of the new article. The prolonged leave could be up to three months 
and  the  mother  cannot  be  dismissed  from  her  job  for  using  this  opportunity.  Also,  an 
amendment  to  the  Law  on  Health  Insurance  was  adopted.  The  financial  means  for  this 
prolonged leave would fall under a specific programme of the Ministry of Health. 

4. Statutory schemes of social security 

The  former  Yugoslav  Republic  of  Macedonia  is  declared  to  be  a  social  State  and  social 
security  is  defined  in  the  Constitution.  According  to  Article  34  of  the  Constitution,  ‘the 
citizens have the right to social security and social insurance’. Article 35 of the Constitution 

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Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
stipulates:  ‘The  Republic  takes  care  of  the  social  protection  and  social  security  of  citizens 
under the principle of social justice’.  

Equality  between insured persons, therefore  also  gender  equality,  is  among  the guiding 
principles  of  the  former  Yugoslav  Republic  of Macedonia’s social  security  system.  Various 
laws  regulate  social  benefits,  such  as  the  Law  on  Health  Insurance,  the  Law  on  Social 
Protection,  the Law on Pension and Disability Insurance,  and the Law on Employment and 
Social Protection during Unemployment (Employment Law).  

However,  the  main  reasons  for  excluding  people  from  receiving  benefits  are  unpaid 
social security contributions and participation in non-remunerated jobs. Since women prevail 
in such jobs, they are more often deprived of social security. 

Regarding  family  benefits,  there  is  no  difference  based  on  sex.  As  regards  survivors’ 
benefits, there are also equal conditions for claiming a widow’s and a widower’s pension. The 
only difference is in the age which must be reached in order to be able to claim a survivor’s 
pension for an unlimited period. 
  Women  receive  special  financial  benefits  for  their  third  and  fourth  child.  With  the  last 
changes to the Law on social protection, the victims of domestic violence will receive lump-
sum benefits. 

5. Self-employed persons 

Self-employed  people  exercise  the  same  rights  under  the  Law  on  Pension  and  Disability 
Insurance  as  well  as  under  the  Law  on  Employment  and  Social  Protection  during 
Unemployment (Employment Law). 

However, self-employment is often connected with running the family business. To this 
end, the action plans and support for self-employment favour women's active engagement in 
the  family  business.  Yet,  Macedonian  legislation  does  not  recognise  helping  spouses  as  a 
separate category. 

Furthermore,  with  the  last  changes  of  the  Law  on  Pension  and  Disability  Insurance, 
instead of the category ‘individual farmer’, the phrase ‘holder of family farm’ is introduced.  
The same change is introduced in the Law on Health Insurance.  As women are head of their 
household in only 23 % of the cases, this change could introduce new dependence of women 
and could be a new source of discrimination.  

6. Goods and services 

The Law on Equal Opportunities for Men and Women as regards access to and the supply of 
goods and services has implemented all articles of Directive 2004/113/EC.  

Equality in the access to and supply of goods and services is also guaranteed by the Law 
on the Prevention of and Protection against Discrimination. This Law applies to all persons 
who supply goods and services to the public, both in the public and the private sector, offering 
goods and services outside the private and family sphere. 

7. Enforcement and compliance aspects 

The  relevant procedure is defined in the  Law  on  the Equal Treatment  of Women  and  Men. 
According to Article 23 of this Law: ‘The procedure based on a written initiative submitted 
by individuals, citizens’ associations, unions and other legally registered entities to establish 
the  unequal  treatment  of  women  and  men  (the  procedure  further  on)  is  initiated  by  the 
Ministry  of  Labour  and  Social  Policy.  The  procedure  at  the  Ministry  of  Labour  and  Social 
Policy  is  carried  out  by  an  Attorney’.  The  procedure  is  completed  by  a  written  opinion  in 
which  the  state  of  affairs  is  established  by  the  Attorney  and  his/her  opinion  on  the 
circumstances of the case is included. 

Protection through litigation may be enforced in accordance with the Labour Law. In the 
Labour Law it is stressed that it is the worker – the individual victim of the discrimination – 
who is the one who can initiate proceedings before the competent court of law. 

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173 

 
 
 
 
 
 
 
 
 
 
 
 
 
Civil  servants  can  initiate  an  administrative  procedure  and  submit  an  administrative 
complaint.  The  administrative  procedure  and  complaint  are  subject  to  strict  time  limits,  but 
the procedure and complaint are not complex and also not very costly. 

Persons  who  feel  discriminated  against  on  the  ground  of  their  sex  may  also  seek 
protection  from  the  Ombudsperson,  or  before  the  Commission  for  protection  against 
discrimination  which  has  been  established  according  to  the  Law  on  the  Prevention  of  and 
Protection  against  Discrimination.  According  to  this  Law,  the  burden  of  proof  shifts  to  the 
defendant in a claim filed by a person claiming to have suffered discrimination if the alleged 
victim has presented credible facts and circumstances, whereas the defendant has to provide 
evidence that the disputed decision is based on a reason other than the sex of the person. 

The shifting of the burden of proof was recently and partially introduced in three laws. 
The  Labour  Law  envisages  this  shift  in  Article  11(1)  and  (2),  while  the  Law  on  Social 
Protection  regulates  it  in  its  Article  23.  An  intriguing  piece  of  legislation  is  the  Child 
Protection Law: its Article 9-I, first paragraph, stipulates this shifting of the burden of proof, 
while  in  the  second  paragraph  its  application  is  excluded  in  misdemeanour  and  criminal 
proceedings.  This  leads  to  the  conclusion  that  the  shifting  of  the  burden  of  proof  is  only 
applicable in administrative procedures and litigation. 

According to the Law on the Prevention of and Protection against Discrimination, in all 
relevant proceedings the victims of discrimination may formally be supported by trade unions 
and civil society organisations, which can join or initiate a discrimination case on behalf of a 
person who has been discriminated against. When the rights of many individuals have been 
violated, the organisations mentioned can initiate discrimination proceedings before a court. 
Victimisation  is  covered  by  the  Law  on  the  Prevention  of  and  Protection  against 
Discrimination (Article 10).  

The  Legal  Representative  for  Equal  Opportunities  for  Women  and  Men  formally 
functions in the Ministry of Labour and Social Policy and a procedure for individual claims 
has been laid down.  However, there is no information on the functioning of this body. 

8. Overall assessment 

The general situation could be described as a process of continuous adoption of and changes 
to many laws, with the explanation that they are transposing EU directives, and of continuous 
adoption of many strategies and action plans related to gender equality. However, there are no 
envisaged  funds for the  implementation  of the  strategic  priorities, or  established  procedures 
for  accountability  and  responsibility  regarding  the  implementation  of  action  plans  or/and 
annual operational plans.  

In  addition,  the  main  concern  is  the increased  trend of  promoting  regressive  traditional 
models for the division of roles and family values through interventions in laws and policies, 
as  well  as  through  a  large  number  of  media  campaigns  supported  with  significant  funding 
from the national budget.    

The  joint  activities  of  the  representatives  of  the  former  Yugoslav  Republic  of 

Macedonia’s Orthodox Church and the Government continue.     

MALTA – Peter G. Xuereb 

1. Implementation of central concepts 

The main laws (Acts) passed by the Maltese House of Representatives in order to implement 
or transpose the relevant EU Directives into Maltese law are the Employment and Industrial 
Relations  Act  2002  (hereafter:  EIRA)331  and  the  Equality  for  Men  and  Women  Act  2003 

331  Chapter 452 of the Laws of Malta (hereafter EIRA). 

174  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
 
 
 
                                                      
(hereafter:  EMWA).332  The  implementation  was  completed  by  the  passing  of  a  number  of 
pieces of subsidiary legislation in the form of Legal Notices under powers conferred by these 
main  Acts  of  Parliament.  This  legislation  viewed  in  toto  seeks  (in  the  view  of  the  expert 
largely  successfully)  to  implement  all  the  main  concepts  and  provisions  of  the  EU  gender 
acquis.  

Some rationalising has taken place over the years. The Equal Treatment in Employment 
Regulations of 2004 (the ETE Regulations)333 plugged many of the gaps, generally bringing 
all  concepts  and  definitions  into  line  with  EU  law.  Later  Acts  of  Parliament  amending  the 
primary  legislation  in  April  2009  brought  the  EIRA  and  the  EMWA  themselves  more  fully 
into line with EU law. These were Act No. IV 2009, amending the EMWA, and Act No. V 
2009, amending the EIRA. New definitions were included for discrimination of all kinds. In 
2011, the Procedure for Investigations Regulations 2011 were adopted (Legal Notice 316 of 
2011), governing the conduct of investigations by the National Commission for the Promotion 
of Equality (NCPE), and further empowering the Commissioner for the Promotion of Equality 
for  the  purpose.  More  recent  legislation  includes  detailed  regulations  on  equal  treatment  in 
employment, on equality regarding various types of leave, including maternity leave, and the 
extension of equality to employees in the public service (both full-time and part-time, fixed-
term or indefinite).334 It further includes legislation on access to goods and services and their 
supply.335 Proposed legislation includes a Gender Identity Act.336 In the above legislation one 
will find the definitions and main rules relating to discrimination, positive action (permitted 
both by EMWA and by the Constitution), harassment and sexual harassment, and all further 
principles  and  rules  implementing  the  various  directives.  The  definitions  in  the  law  of  the 
various  concepts  such  as  discrimination  (direct  and  indirect),  harassment  and  sexual 
harassment, and instruction to discriminate are faithful reproductions of the definitions in EU 
law. 

2. Equal pay and equal treatment at work 

2.1. Equal pay  
The Equal Treatment in Employment Regulations (ETE Regulations), made under the EIRA, 
spell out the position as therein envisaged. The EMWA is also pertinent, as the wide wording 
of its provisions catches all terms or conditions which infringe the equal pay principle through 
the use of job classification schemes.  

The ETE Regulations were amended in 2007 to establish clearly, via Article 3A (‘It shall 
be  the  duty  of the employer to  ensure’), the  obligation  to  ensure  equal treatment  in  pay  for 
equal  work,  and,  via  Article  12A  (‘It  shall  be  the  duty  of  the  employer  to  prevent’),  the 
obligation  upon  all  employers  to  take  all  measures  to  prevent  breaches  of  the  relevant 
provisions in the ETE Regulations (and hence in the EIRA).  

Neither the EIRA nor the EMWA define the concept of ‘work of equal value’. Nor, in the 
case  of  the  ETE  Regulations,  is  there  a  definition  of  the  phrase  therein  used  in  Article  3A, 
namely  ‘work  to  which  equal  value  is  attributed’.  There  has  been  no  reported  case  law 
involving gender where the Courts have had to establish this. However, in Neil John Pavia v 
Mediterranean Aviation Co. Ltd., an airline pilot alleged unequal pay and the Tribunal applied 

332  Chapter 456 of the Laws of Malta (hereafter EMWA). 
333  http://www.google.com.mt/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCQQFjAA&url=

http%3A%2F%2Fwww.justiceservices.gov.mt%2FDownloadDocument.aspx%3Fapp%3Dlom%26itemid%3D
11229&ei=VDpjVP7ZK8fyPK_SgTg&usg=AFQjCNEtWuvnWcApaLjndj_54cp034dQwQ&bvm=bv.791890
06,d.ZWU&cad=rja  accessed 10 November 2014. 

334  All available at Laws of Malta website at http://www.justiceservices.gov.mt/LOM.aspx?pageid=27&mode=

chrono&gotoID=452, accessed 25 May 2013. 

335  Available at http://www.justiceservices.gov.mt/LOM.aspx?pageid=27&mode=chrono&gotoID=456, accessed 

25 May 2013. 

336  Act IX of 2012 amended the EMWA so as to provide for gender identity as a prohibited ground of 

discrimination. 

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Article 27 of the EIRA.337 It examined all relevant contracts and job descriptions, and looked 
into  technical  details  relating  to  descriptions  of  aircraft  and  pilot  classes.  It  applied  the 
comparator principle and sought to locate the complainant’s salary in the light of the salaries 
paid to colleagues in a similar situation (other pilots assigned to another type of aircraft), in 
terms of qualifications and experience. It found that there was a case of unequal pay for no 
objective or justifiable reason, and quantified the compensation payable. The Tribunal did not 
associate the discrimination with any of the traditional grounds of discrimination, pointing out 
Article  27  of  the  EIRA  does  not  require  such  a  ground  to  be  identified  or  even  to  be  a 
substantive component of the prohibited practice. 

The ETE Regulations apply, in virtue of Article 1(2) of the Regulations, to all persons as 

regards both the public and the private sector and including service with the Government. 

2.2. Access to work and working conditions  
The principal law is the EIRA. This provided for the possible extension of its provisions to 
public  officers,  which  has  been  done.  The  other  main  piece  of  legislation  in  the  area  is  the 
EMWA,  which  contains  provisions  that  overlap  with  those  of  EIRA  and  apply  to  all 
employees.  ‘Employment’  is  defined  broadly  to  include  self-employment.  The  EMWA 
contains the main provisions on direct and indirect discrimination, victimisation, harassment 
and sexual harassment, positive action, the validity of collective agreements, and the spouses 
of  self-employed  workers,  and  it  includes  specific  provisions  prohibiting  discrimination  by 
educational establishments, providers to the public of goods and services and accommodation 
facilities, and for access to financial services. Together, the two Acts provide for the duties of 
employers,  as  well  as  remedies  including  the  right  to  compensation.  The  EMWA  provides 
expressly that ‘positive action’ may be taken to redress a structural disadvantage. No specific 
measures have as yet been adopted on this score, but the ETE Regulations now fully reflect 
EU law on the matter. On the other hand, the present Government has introduced free – i.e. 
Government-funded – childcare for all, and this will clearly benefit women most since they 
have  traditionally  forgone  working  when  the  family  finances  did  not  run  to  paying  for 
childcare. 

2.3. Occupational pension schemes 
The  relevant  legislation  is  the  Equal  Treatment  in  Occupational  Security  Schemes 
Regulations,338 enacted under the powers given by the Social Security Act.339 The extension 
of the material scope to occupational social security schemes is reflected in Maltese law. Now 
in  force  is  the  Retirement  Pensions  Act,  Act  XVI  of  2011,  which  in  part  implements  the 
Occupational Pensions Directive, Directive 2003/41/EC and related measures. The (on-going) 
pension reform, currently stalled, is designed to introduce compulsory occupational (‘second 
pillar’) and private (‘third pillar’) pensions, but so far no developments have occurred.  

3. Pregnancy and maternity protection, parental leave and adoption leave  

Maltese  law  provides  for  all  the  different  types  of  leave  and  seeks  to  dovetail  them  in  the 
manner indicated by relevant EU legislation. The period of maternity leave was increased in 
two  stages, from  fourteen weeks  to  what  is  now  a  period  of  eighteen  weeks,  in  place  since 
January 2013.340 Previously, the employer paid the employee’s wages in full during the period 
of  maternity  leave.  The  Government  has  now  assumed  part  of  this  cost  in  return  for  an 

337  Industrial Tribunal, Decision No. 2003, Case No. 2627/LC, of 1 June 2010, available (in Maltese) at 

http://industrialrelations.gov.mt/industryportal/industrial_relations/industrial_tribunal/rulings/trib_dec_2010.aspxa
ccessed 5 September 2013. 
338  Legal Notice 317 of 2005. 
339  Chapter 318, Laws of Malta. 
340  Regulation 2 of the Protection of Maternity (Employment) (Amendment) (No.2) Regulations 2011, Legal 

Notice 503 of 2011, amending Regulation 6 of the Protection of Maternity (Employment) Regulations of 2003, 
Legal Notice 439 of 2003.  

176  

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increase in the employer’s social security contributions.  This could lead to longer periods of 
maternity leave being stipulated by law in future.  

The rights to parental leave are found in the Employment and Industrial Relations Act of 
2002  and  in  Regulations  made  thereunder,  including  the  Parental  Leave  (Entitlement) 
Regulations 2003.341 The Parental Leave Entitlement Regulations refer to ‘parental leave on 
the grounds of birth, adoption, fostering or legal custody of a child’ (Regulation 4(1)), so that 
no  distinction  is  made  between  the  different  possible  reasons,  as  set  out,  for  the  claim  of 
‘parental’  leave.  In  all  cases,  it  is  ‘parental  leave’.  This  leave  is  distinct  from  other  leaves, 
such as maternity leave.  

Regulation 9(2) provides that ‘during the period of parental leave, an employee shall not, 
upon  the  resumption  of  duties  at  the  workplace,  be  entitled  to  any  other  leave,  bonuses  or 
allowances and shall not avail himself of such entitlement which might have accrued during 
such period’. 

There is a public/private sector difference, with twelve months available to public-sector 
employees  while  a  maximum  of  four  months  is  statutorily  available  to  private-sector 
employees. Parental leave under the Parental Leave Entitlement Regulations is a four-month 
period of leave given to a parent in order to enable that parent to personally care for a child 
below  the  age  of  eight.  It  is  separate  from  other  leaves.  According  to  the  Public  Service 
Management Code, which relates to public-sector employees, employees who have served for 
twelve  months  are  permitted  up  to  twelve  months  unpaid  parental  leave.  Those  who 
immediately  prior  to the  utilisation  of  parental  leave  avail  themselves  of the  paid  maternity 
leave  entitlement,  are  required  to  put  in  six  months  of  service  if  they  wish  to  run  parental 
leave  after  maternity  leave.  The  six  months  of  service  must  be  worked  in  one  aggregate 
period, either immediately before or immediately after the utilisation of the parental leave or 
the  five-year  unpaid  career  break  to  which  parents  or  legal  guardians  are  entitled  under  the 
Public Service Management Code.  

As  to  the  implementation  of  Directive  2010/18,  the  Parental  Leave  Directive  was 
implemented in Malta by way of amendment of the Parental Leave (Entitlement) Regulations 
2003, the amendments of which entered into force on 8 March 2012. This was facilitated by 
the  Parental  Leave  Entitlement  (Amendment)  Regulations  of  2011,342  passed  under  powers 
given by the principal Act, namely the Employment and Industrial Relations Act 2002. 

Parental leave must be availed of in established periods of one month each (Regulation 
4(1)).  Unless  otherwise  prescribed  by  collective  agreement,  the  employer  together  with  the 
employee may decide whether to grant the parental leave on a full-time or a part-time basis, 
piecemeal  or  in  the  form  of  a  time-credit  system.  Therefore,  agreement,  collective  or  in 
default individual, is at the basis of the mode of enjoyment. 

According  to  the  Public  Service  Management  Code,  for  public  employees  with  at  least 
twelve  months  of  service  are  allowed  to  avail  themselves  of  a  maximum  of  twelve  months 
unpaid  parental  leave  on  the  grounds  of  birth,  adoption,  legal  custody,  and  foster  care  of 
children who are under the age of eight. Unpaid parental leave may be utilised in aggregates 
of  four-month,  six-month  or  nine-month  periods,  or  the  maximum  of  twelve  months.  The 
period of parental leave chosen may only be taken in one period and may be shared by both 
parents. When parents apply for parental leave, the selected period must be declared up front. 
Any  outstanding  parental  leave  that  is  not  utilised  (from  the  twelve-month  entitlement)  is 
forfeited and may not be used at a later date, unless covered by specific other provisions. The 
maximum of twelve months of unpaid leave may be availed of in respect of each child. By 
way  of  exception,  four  months  of  the  parental  leave  entitlement  may  be  broken  down  in 
periods of one month at a time, and until the child is eight years old. The director concerned, 
together with the employee, may decide that these four months are granted on a full-time or a 
part-time basis, in a piecemeal way or in the form of a time credit system.  

341  Parental Leave (Entitlement) Regulations 2003, as amended by the Parental Leave Entitlement (Amendment) 
Regulations of 2011,   which amendments came into force on 8 March 2012. Legal Notice 204 of 2011. 

342  Legal Notice 204 of 2011. 

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There is a minimum statutory notice period of three weeks.  For public employees taking 
unpaid leave, the Public Service Management Code provides that employees are required to 
give at least three months’ notice, except where such leave does not exceed three months, in 
which  case  a  three-week  notice  period  would  suffice.  The  employee  must  have  been  in  the 
employment of the same employer for a continuous period of at least twelve months.  

As  to  additional  measures  addressing  the  specific  needs  of  adoptive  parents,  there  is  a 
rule  stipulating  the  form  of  evidence  required  to  be  given  to  the  employer  (Regulation  5). 
Also,  the  Public  Service Management  Code  makes  provision  for  a  right to  eighteen  weeks’ 
paid  adoption  leave,  and  makes  provision  for  the  special  needs  of  parents  involved  in 
international adoption. 

4. Statutory schemes of social security 

The Social Security Act is deemed to cover all the relevant risks and the general principle of 
equality between men and women is applied.343 This law applies to all persons who work for 
an employer for eight hours or more per week. This likely has the effect of ruling out of its 
operation (and protection) many female workers who work few hours with the same employer 
per week (for example, as home helps). In general, Maltese law has in the past not addressed 
the matters referred to in Article 7(1) of the relevant Directive, i.e. the exclusions. However, 
the  Government  has  declared  its  intention  to  abide  by  its  obligation  under  the  Directive  to 
periodically examine the matter of the exclusions. The statutory scheme was amended by the 
Social  Security  (Amendment)  Act  of  2006  to  provide  for  equal  retirement  ages  and  for  the 
gradual (phased-in) increase in the retirement age to 65 for both men and women.  

5. Self-employed persons 

Directive 2010/41 was sought to be transposed by the amendment of the Equality for Men and 
Women Act of 2003, Chapter 456 of the Laws of Malta, by the Equality for Men and Women 
(Amendment) Act of 2012;   and by the Equal Treatment in Self-Employment and Occupation 
(Amendment) Order 2012,   which amended the ETSEO Order of 2007.  The first amending 
Act  introduced  a  new  definition  of  ‘self-employed  worker’  into  Article  2,  in  a  manner  that 
combines in one provision Paragraphs (a) and (b) of the Directive. It is expressly stated in the 
definition that this meaning is ‘in line with Directive 2010/41 of the European Parliament and 
the  Council  of  7  July  2010’.  The  Equal  Treatment  in  Self-Employment  and  Occupation 
(Amendment) Order of 2012 amended the ETSEO Order of 2007 in order expressly to bring 
the  law  into  line  with  the  Directive. The  broad  effect  of  the  above  legislation  was  to  apply 
many  of  the  provisions  of  the  Equal  Treatment  in  Employment  Regulations  to  the  self-
employed and to their spouses, and to implement Directive 2010/41. 

The Industrial Tribunal has now delivered its ruling in the Psaila Savona Case.344  This 
case had been pending for four years, only to end with the Tribunal deciding in March of this 
year that it had no competence to hear the case on the merits since there was no employment 
relationship  between  the  parties  but  rather  a  consultancy  agreement.  In  effect,  the  Tribunal 
held that there was no contract of service and therefore no employer-employee relationship, 
so  that  the  relationship  was  not  governed  by  the  law  relating  to  employment  relationships. 

343  Social Security Act, Chapter 318 of the Laws of Malta. 
344  A. Massa Tribunal takes four years on pregnant woman’s case.  And then it decides it has no jurisdiction 

over sacked mother’s claim Sunday Times of Malta, March 16, 2014, 00:01 available at:  
http://www.timesofmalta.com/articles/view/20140316/local/Tribunal-takes-four-years-on-pregnant-woman-s-
case.510749, accessed 15 July 2014. Av Dr Anika Psaila Savona v. CHI Ltd. Case Number 2757 /MF, 
Decision Number 2275, Industrial Tribunal, 3 March 2014, available at: http://www.google.com.mt/
url?sa=t&rct=j&q=
&esrc=s&source=web&cd=3&ved=0CD4QFjAC&url=http%3A%2F%2Findustrialrelations.gov.mt%2Fdownl
oad.aspx%3Fid%3D2262&ei=ba5gU-noEKOR4AT04YHoDg&usg=AFQjCNEUnT-
xFLCMyMEf4NmJdg9MtxWqqA,  accessed 15 July 2014. 

178  

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Nor,  it  was held,  did  the  Industrial Tribunal  have  competence  to  decide  disputes  other  than 
those arising from a contract of employment.  

Dr Anika Psaila Savona, a lawyer, had alleged unfair dismissal on grounds of pregnancy. 
Her  employer,  a  leading  hotel  group,  argued  that  she  was  not  an  employee  but  a  ‘legal 
consultant’  operating  as  a  self-employed  person,  and  that  she  was  therefore  not  covered  by 
employment legislation, as well as that she was not dismissed on grounds of pregnancy.  

The case was to test the limits of the anti-discrimination provisions of the Employment 
and Industrial Relations Act of 2002 (Chapter 452 of the Laws of Malta, hereafter ‘EIRA’) 
and the Protection of Employment (Maternity) Regulations  by reference to the definitions of 
‘employer’, ‘employee’, ‘contract of service’ and ‘contract of employment’. 

The claimant argued that irrespective of profession and designation, and even the signing 
by her of a ‘consultancy agreement’ she was in fact and in law an employee at the time of her 
The  Employment  Status  National 
dismissal, albeit as a highly qualified professional. 
Standard Order of 2012345 in Paragraph 3 sets out a presumption in favour of an employment 
relationship; the criteria to be applied in supporting the presumption centred on the concepts 
of dependent work.  

The proviso  added to the definitions in the EIRA of ‘contract of service’ and ‘contract of 
employment’ by the Employment Status National Order (Legal Notice 44 of 2012) appeared 
possibly to indicate an outcome in favour of the claimant if the facts showed that in the course 
of carrying out her duties she acted under instruction to a high degree. Legal Notice 44 had 
the object of ‘clarifying’ certain provisions of the EIRA. No preliminary reference was made, 
since the Tribunal dismissed the case for lack of jurisdiction. The Tribunal also argued that as 
no employment was present, the Industrial Tribunal was not the proper forum.  The claimant 
has since filed a case before the civil court, where the possibility of a reference to the Court of 
Justice may arise. 

6. Goods and services  

The  transposition  of  Directive  2004/113/EC  was  first  delayed  but  then  effected  with  the 
adoption  of  the  Access  to  Goods  and  Services  and  their  Supply  (Equal  Treatment) 
Regulations, 2008 (hereafter: AGSS Regulations).346 Existing legislation had already covered 
particular  issues.  For example, the  EMWA  made  provision  regarding  banking  and  financial 
services  establishments  offering  goods,  services  or  accommodation  and  protection  against 
sexual  harassment  at  those  places  (Article  9);  Article  10  covers  advertisements;  Article  8 
deals  with  educational  establishments  and  similar  entities  and  access  to  courses,  awards, 
selection and assessment. Some other provisions of relevance were in force, such as that on 
employment agencies in the Equal Treatment in Employment Regulations of 2004. Article 3 
of the Directive is implemented by reproduction in Regulation 1 of the AGSS regulations.  

Article 5 of the Directive has been transposed in Regulation 5 AGSS. These Regulations 
were  amended  by  means  of  the  Access  to  Goods  and  Services  and  their  Supply  (Equal 
Treatment) (Amendment) Regulations 2012347 in order to bring the said Regulations into line 
with the Test-Achats ruling348 and the Guidelines issued by the European Commission. On 13 
February 2012, the MFSA amended Insurance Rule 6 of 2011 on the Scheme of Operations 
Relating to the Business of Insurance so as to refer to the Guidelines issued by the European 
Commission  to  clarify  that  the  unisex  rule  contained  in  Article  5(1)  of  the  Directive  is  to 
apply to all insurance contracts entered into after 21 December 2012. 

345  S.L. (Subsidiary legislation) 452.108 of 31 January 2012, Legal Notice 44 of 2012, as amended by Legal 

Notices 110 and 364 of 2012. 

346  Legal Notice 181 of 2008. 
347  L.N. 417 of 2012.  
348  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

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7. Enforcement and compliance aspects 

The EIRA did not make the breach of Articles 26 or 27 a criminal offence. It did provide for 
civil liability in Article 30, which empowers the Industrial Tribunal to give relief. Further to 
this, Article 10 of the ETE Regulations, made under the EIRA, also adds a right of access to 
the Civil Court for relief by way of injunction and/or compensation. These Regulations, via 
Article 14 of the Regulations, also render all breaches of the Regulations – and therefore also 
of the ‘equal pay for same or equal work’ principle – a criminal offence punishable by a fine 
(multa) not exceeding EUR 2329.37 or imprisonment for a period not exceeding 6 months, or 
both. Without prejudice to remedies available under Article 30 of the EIRA, Article 19 of the 
EMWA grants a right of access to the competent court of civil jurisdiction (the ‘Civil Court 
First  Hall’)  for  an  injunction  and/or  compensation.  The  time  limit  for  the  bringing  of  the 
action is four months ‘from the alleged breach’, according to the ETE Regulations. While it is 
considered that the prospect of imprisonment provides an adequate deterrent, it cannot really 
be said that the prospect of the fine is any real deterrent, due to its rather low ceiling. 

Under the Protection of Maternity (Employment ) Regulations of 2003, it is an offence 
for  any  person  to  contravene  the  Regulations,  punishable  by  a  fine  of  not  less  than  EUR 
465.87, a minimum considered by many NGO experts to be too low to provide a deterrent.  
Any breach of the Parental Leave Regulations is an offence rendering the offender liable to a 
minimum penalty of EUR 116.47 and a maximum penalty of EUR 1164.69, and again it can 
be seriously doubted whether this provides sufficient deterrence in practice.  

Both in terms of the EIRA and of the EMWA, avenues for redress include the Industrial 
Tribunal  and  the  Civil  Court;  the  Civil  Court  sitting  in  its  constitutional  jurisdiction;  the 
Constitutional  Court;  the  Public  Service  Commission  (for  the  public  service)  and  the 
Ombudsman  (whose  recommendations  are  non-binding).  The  Industrial  Tribunal  and  the 
Court  are  also  accessible  with  the  assistance  of  the  NCPE;  Malta’s  ‘equality  body’  as 
established under the EMWA. It possesses powers of investigation and mediation and, with 
the victim’s approval, of suit. Until a few years ago, the annual reports of the NCPE used to 
declare that some one hundred or so complaints were filed each year in the gender context and 
that a large number of these were settled after mediation by the NCPE. The numbers seem to 
have dropped markedly in recent years to a few dozen. The NCPE annual report for 2013 has 
now  been  published.349  Meanwhile,  it  was  announced  in  Parliament  that  the  NCPE  would 
have its brief widened, so that it will become the main Human Rights Body for Malta, under 
the  new  title  of  National Commission  for  Equality  and  Human  Rights.350  However,  various 
NGOs objected that the NCPE is not fully independent of the Government, and Government 
is said to be revising its plans.351 

Regulation  10  of  the  ETE  Regulations  applies  to  all  situations  of  sex  discrimination  in 
employment  and  vests  the  right  to  access  the  Industrial  Tribunal  (without  prejudice  to  the 
right to bring an action in the Civil Court for an order to cease and desist) for a declaration of 
nullity of any contract, collective agreement or clause as such, and for compensation. As is 
usual,  it  places  the  burden  of  proof  on  the  employer  once  the  claimant  proves  facts  from 
which it can be presumed that ‘there has been direct or indirect discrimination’.352 Previous 
reports have raised the issue of  the lack of clarity as to the wording and potential application 
of the rule on the burden of proof in judicial proceedings in the context of discrimination. A 
recent amendment of the Equality for Men and Women Act seeks to place the burden of proof 
of  non-discrimination  even  more  clearly  on  the  defendant  after  the  claimant  shows  facts 
suggesting  discriminatory  treatment,  bringing  the  law  squarely  in  line  with  EU  law  on  this 

349  The NCPE Annual Reports can be accessed on the NCPE website at http://msdc.gov.mt/en/NCPE/Pages/

Our_Publications_and_Resources/NCPE_Annual_Reports.aspx, accessed 10 November 2014. 

350  Times of Malta, Tuesday, 27 May 2014, p.8. 
351  Caroline Muscat, Human Rights Body has to be Independent. Times of Malta, Saturday 31 May 2014 

http://www.timesofmalta.com/articles/view/20140531/local/Human-rights-body-has-to-be-independent-
.521268, accessed 2 June 2014. 

352  The same applies in the context of maternity, parental and urgent family leave, by Regulation 10(4). 

180  

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point.353   As to time limits, the EIRA and the ETE Regulations 2004 set a peremptory period 
of ‘within four months of the alleged breach’ for the filing of the complaint or the bringing of 
the  action.  The  EMWA,  which  applies  also  beyond  the  employment  context,  sets  no  time 
limit.  

In  2011,  Parliament  adopted  the  Procedure  for  Investigations  Regulations  2011  made 
under  the  power  conferred  by  Article  18(3)  of  the  EMWA,  which  lay  down  important 
provisions for the carrying out of investigations under the Act, giving the Commissioner for 
the  Promotion  of  Equality  the  power  to  require  information  or  documents  and  to  summon 
persons to give information orally. 

Under the AGSS Regulations any contractual provision, internal rules or governing rules 
that breach EU law are rendered null and void by operation of law, and are unenforceable, in 
virtue  of  Regulation  10(2).  Enforcement  of  good  practice,  for  example  with  regard  to 
exclusion from places of leisure and entertainment for reasons of race, is another matter. 

The  NCPE  and  other  associations,  organisations  or  legal  entities  having  a  ‘legitimate 
interest’  may  engage  themselves  on  behalf  of  or  in  support  of  a  complainant  in  all  judicial 
proceedings, with the complainant’s approval. There is no clear provision engaging the ‘social 
partners’. While the trend is to regard collective agreements as binding, they cannot be said to 
have been employed as such to implement Union Law. Also, the dearth of cases shows the 
reluctance  of  complainants  to  sue  or  authorise  others  to  sue  on  their  behalf.  Otherwise, 
remedies  include  an  order  to  cease  and  desist  and/or,  in  the  eventuality,  reinstatement  and 
compensation.  

However,  in  general  it  can  be  said  that  where  the  law  imposes  a  penalty  (a  fine)  such 
penalties  are  surely  too  low  to  sufficiently  dissuade  and  deter  in  all  cases.  Imprisonment  is 
laid down for cases of victimisation, harassment or sexual harassment. 

8. Overall assessment 

Categorical assessment is impossible without sufficient court judgments. Also, it remains true 
that the manner of implementation in general has itself given rise to some lack of clarity in the 
law.  There  are  the  respective  but  overlapping  spheres  of  the  EIRA  and  the  EMWA. 
Regulations  for  giving  ‘better  effect’  to  the  primary  legislation  have  been  made  under  the 
EIRA  and  under  the  EMWA.  The  EIRA  regulations  effectively  updated  the  principal 
legislation’s  key  concepts  and  brought  these  concepts  closer  to  the  definitions  in  the 
respective EU directives. The situation was much improved by the enactment of Acts IV and 
V of 2009. Still, where penalties are set down, they are regarded as weak in the estimation of 
many, such as to provide no truly effective deterrent. Also, European law really does need to 
take a hand in solving the problem that complainants are reluctant to take up their rights and 
pursue  remedies  through  the  national tribunals and  courts,354  for  example  by  examining  the 
use of public interest actions.  Having  said  this,  the  overall  comment  should  be  that  the 
Maltese  courts  and  tribunals  have  the  tools  at  their  disposal  to  fully  ‘apply’  Union  law  by 
properly interpreting and applying the Maltese law in place as well as giving effect to directly 
applicable or directly effective Union law.   

THE NETHERLANDS – Rikki Holtmaat 

1. Implementation of central concepts 

In the Netherlands, the earliest equal treatment legislation dates from 1975, when the Equal 
Pay Act came into force. In 1980 this Act was included in the Equal Treatment Act (ETA) for 

353  Onus now on defendants to prove non-discrimination, Times of Malta, Tuesday 27May 2014 27, p. 8. 
354  See: NCPE study entitled Under-reporting of discriminatory incidents in Malta – a research study. ISBN 

Number: 978-99909-89-40-3. Available on NCPE website at www.equality.gov.mt, accessed 30 May 2013. 

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181 

 
 
 
 
 
 
 
 
 
 
                                                      
Men and Women in Employment (amended several times), which was followed in 1994 by a 
General Equal Treatment Act (GETA) also covering several other grounds and extending the 
scope  to  the  area  of  goods  and  services.  In  2004  the  ETA  and  GETA  were  amended  and 
brought into line with the newest Directives.355 For a long time now, the Dutch Government 
has  been  in  the  process  of  developing  an  Integration  Act  in  which  all  of  the  existing  equal 
treatment  laws  (including  laws  prohibiting  discrimination  on  the  grounds  of  age  and 
disability) will be integrated. In the Coalition Agreement of November 2012 between liberals 
and  social  democrats,  there  is  no  mention  of  this  Integration  Act,  so  it  seems  that  the  new 
Government does not regard it as a priority issue.356 

In  2008,  the  Government  of  the  Netherlands  received  a  letter  from  the  European 
Commission,  pointing  out  alleged  inadequacies  in  the  transposition  of  the  equal  treatment 
directives.357  In  this  letter,  the  Commission  inter  alia criticised  the  definitions  of  direct  and 
indirect discrimination in the Dutch equal treatment laws, and the overly broad scope of some 
legal exceptions in the ETA (including the exception for personal services). In reaction to this 
procedure,  the  provisions  of  the  equal  treatment  laws  that  were  considered  too  broad  were 
brought into line with the Directives in November 2011, including the exception as regards 
personal services.358  

The  GETA  and  the  ETA  explicitly  permit  positive  action  on  certain  conditions;  this  is 
formulated as an exception to the prohibition on making a distinction on the ground of sex. 
These  conditions  imply  that  (a)  a  positive  measure  must  be  aimed  at  diminishing  or 
eliminating disadvantages for women, (b) the disadvantages must be linked to sex and (c) the 
measure must be proportionate to the aim. There is no obligation or requirement to introduce 
and  effectuate  positive  action  programmes  in  the  equal  treatment  laws.  In  2011,  Parliament 
adopted  an  amendment  to  the  Civil  Code  in  which  it  is  stipulated  that  public  and  private 
limited  companies  with  more  than  250  employees  have  an  obligation  to  strive  for  30 %  of 
women  on  their  board  of  executive  directors  and  on  their  advisory  board.359  There  is  no 
sanction when this target is not met. 

Instructions  to  discriminate  are  prohibited  by  law,  as  is  discrimination  itself.  The  term 
‘instruction’ is not defined. The (then) Equal Treatment Commission (ETC)360 suggested that 
the legislator had interpreted this word too restrictively (in the Memorandum of Explanation 
to  the  EC  Implementation Bill)  and  that  the  prohibition  of instruction to  make  a  distinction 
should  also  include  a  prohibition  of  the  passive  toleration  of  an  existing  discriminatory 
situation or act.361 As yet, there is no case law to clarify this point. 

Harassment  and  sexual  harassment  are  prohibited  by  law  in  the  same  way  as 
discrimination itself. The  definition of  (sexual)  harassment  in  the  ETA  and  in the  GETA  is 
quite  similar  to  the  definition  in  the  EU  directives.  However,  there  is  one  difference  as 
compared  to  the  directives’  definitions:  the  word  ‘unwanted’  is  lacking  in  the  definition  of 
sexual  harassment. The  Government  believes  that this  would  place  quite  a  heavy  burden  of 
proof on the victim to show that the sexual harassment was (subjectively) unwanted. Instead, 
the Government wanted to emphasise that sexual harassment, objectively speaking, is always 
an offence. Therefore, leaving out ‘unwanted’ does not seem to be a problem, since this offers 

355  Act of 21 February 2004 regarding the amendment of the General Equal Treatment Act and some other Acts in 

order to implement Directive 2000/43/EC and Directive 2000/78/EC. 

356  In December 2013, a letter was sent to Parliament by the Minister of the Interior and Kingdom Relations, 

indicating that other legislative projects received prioritisation, given that the proposed Integration Act would 
not result in any substantial changes. See Kamerstukken II 2013/14, 28 481, no. 23. 

357  Letter dated 31 January 2008 (no. 2006-2444), with reference to the infringement procedure of 18 December 

2006, infringement no. 2006/2444. 

358  Act of 7 November 2011, published in the Law Gazette 2011, 554. In the Memorandum of Explanation, it is 
emphasised that the proposal is meant to streamline, not to change any of the substantive content of equal 
treatment legislation.  

359  Act of 6 June 2011, published in the Law Gazette 2011, 275. 
360  In 2012, the ETC was abolished and replaced by the Netherlands Institute for Human Rights (NIHR), which 

took over its functions as regards equal treatment issues. See Section 7 of the current report.  

361  ETC Advice 2001-03, p. 6 and 2001-04, p. 4.  

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more  protection  to  potential  victims  of  discrimination/sexual  harassment.  Notwithstanding 
this  clear  position  of  the  Government  that  sexual  harassment  is,  objectively  speaking,  an 
offence, the Dutch Supreme Court, in a judgment in 2009, interpreted the definition of sexual 
harassment  in  such  a  way  that  it  left  some  room  for  the  accused  to  adduce  subjective 
arguments (concerning the motive for the behaviour in question).362 

2. Equal pay and equal treatment at work  

2.1. Equal Pay 
The  definition  of  Article  2(2)  Recast  Directive  has  not  been  transposed  literally  into  Dutch 
equal treatment legislation. Pay has been defined in Article 7(2) ETA as ‘any remuneration 
owed by the employer to the employee in return for the labour of the latter’.363 Many possible 
elements of pay are included, e.g. the payment of expenses.364 The then ETC held that also 
remunerations  ‘in  kind’  (e.g.  the  use  of  a  lease  car)  are  included  in  the  concept  of  pay.365 
Dutch  courts  and  the  Netherlands  Institute  for  Human  Rights  (NIHR)  closely  follow  CJEU 
case law regarding the meaning and scope of the concept of pay.366 The main Dutch equality 
body  has  conducted  extensive  research  into  the  causes  and  consequences  of unequal  pay  in 
certain  sectors  of  the  labour  market367  and  is  active  in  developing  methods  for  assessment 
where and how equal pay occurs. 

In the Netherlands, a two-way approach is used in order to combat unequal pay practices. 
The first approach is through concrete comparison of the salary of a person of one sex to that 
of a person of another sex, which can be found in Articles 7-10 ETA and Articles 7:646-7:649 
Civil  Code.  This  means  that  there  is  a  right  to  equal  pay  for  work  of  equal  value  or  of 
approximately  equal  value  for  workers  who  work  for  the  same  employer.  There  is  an 
obligation to use (standardised) work classification schemes to evaluate the value of jobs that 
are  being  compared.  However,  the  then  ETC  held  several  times  that  in  fact  the  job 
classification system itself was discriminatory since it was not gender neutral. 

The  second  approach  is  the  comparison  of  (apparently  neutral)  employment  conditions 
concerning any kind of remuneration for work, e.g. a practice granting extra pay for workers 
who  are  prepared  to  work  overtime.  This  type  of  conditions  can  be  contested  under  the 
provisions prohibiting indirect sex discrimination. In that case, it will be tested whether there 
is  an  objective  justification.  The  normal  (stringent)  objective  justification  test  is  applicable 
here. No justifications for pay differences are accepted, as soon as it is established that these 
differences do in fact exist and are related to sex. 

2.2. Access to work and working conditions  
The GETA and ETA both prohibit unlawful distinctions in the context of employment. These 
Acts apply to all sectors of public and private employment and occupation, including contract 
work,  self-employment  and  military  service.  The  ETA  also  covers  the  area  of  access  to 
professional  education  and  the  conditions  in  which  this  education  takes  place  (including 
examinations). In addition, the ETA covers the area of occupational pensions (as part of equal 
pay). Finally, the GETA covers membership of or involvement in an employers’ organisation 
or  trade  union,  or  a  professional  occupational  organisation,  as  well  as  with  regard  to  the 
benefits which may arise from that membership or involvement.  

362  Supreme Court of the Netherlands (Hoge Raad) 10 July 2009, ECLI:NL:HR:2009:BI4209. To be found at: 

http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=kenmerken&vrije_tekst=BI4209, 
accessed 31 May 2014. 

363  Pension payments or entitlements are included in this definition.  
364  Kamerstukken II, 1973/74, 13 031, no. 3, p. 4.  
365  ETC Opinion 2000-45.  
366  See I.P. Asscher-Vonk & W.C. Monster Gelijke Behandeling bij de Arbeid, Kluwer, Deventer 2002, p. 195.  
367  See e.g. Opinion 2011-54 concerning an investigation that the ETC conducted of its own accord into the 

general situation of unequal pay in the sector of general hospitals. 

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2.3. Occupational pension schemes  
As  a  consequence  of  the  Barber  judgment368  and  Directive  96/97/EC,  in  1998  some 
provisions  concerning  occupational  pension  schemes  were  included  in  the  ETA  (Articles 
12a/12e ETA). The intention of this amendment was to transpose the acquis as precisely as 
possible and to add nothing more in terms of the protection or reparation of women’s rights 
than what is required by the directives and the case law of the CJEU. The exceptions in this 
legislation are in accordance with the directives. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Pregnant women and women who have recently given birth are protected by equal treatment 
legislation, since this legislation states ‘(…) the term direct distinction on the ground of sex 
must  also  be  understood  as  a  distinction  on  the  ground  of  pregnancy,  childbirth  and 
maternity.’369 This means that in respect of all the aspects of the employment relationship that 
are covered  by  the  GETA and  ETA,  pregnant  women  and  mothers  are  protected  against  all 
forms of discrimination (i.e. including indirect discrimination and (sexual) harassment). In the 
Civil  Code,  Article  7:670(2), there is  an explicit  prohibition  on  dismissing  a  woman  during 
pregnancy. There is no explicit right to return to the same or a comparable job after having 
taken pregnancy or maternity leave; the Government did not deem it necessary to implement 
these provisions in the Directive since this right is guaranteed under the right not to be treated 
unfavourably  with  respect  to  any  condition  of  work,  or  the  prohibition  on  dismissing 
somebody because of pregnancy, childbirth or motherhood. The European Commission does 
not share this view and started an infringement procedure in January 2013, as it considered 
the Dutch system to be insufficient as regards the protection of the right to return to the same 
or  comparable  job.370  On  22  October  2014  the  CJEU  handed  down  its  judgment  and 
dismissed  the  action  as  inadmissible  because  not  all  of  the  formalities  of  Article  258  TEU 
were complied with. Specifically, the Commission did not identify any rule of Dutch law that 
in  its  content  or  application  was  contrary  to  the  wording  or  the  objective  of  the  relevant 
provisions of Directive 2006/54.371  

The issue of leave is mainly addressed in the Work and Care Act.372 In this Act, a range 

of care leave arrangements is provided: 
–  Pregnancy/maternity  leave:  granted  for  a  period  of  16  weeks.  Prior  to  confinement,  a 
leave of four to six weeks is compulsory, which implies that 10 to 12 weeks remain for 
leave after confinement. Women are entitled to receiving benefits equal to 100 % of their 
salary during their leave, up to a maximum daily wage of approximately EUR 196. The 
pregnant woman can decide herself when to start the leave, provided that she announces 
this three weeks in advance.  

–  Parental leave: parents who have worked for their current employer for at least one year 
are entitled to take a specified amount of parental leave to care for their own, adopted or 
foster children, until the child reaches the age of eight. This right is non-transferable to 
the  other  parent.  Parents  can  take  26  weeks  half-time  leave  (pro  rata  for  part-time 
employees) per child. 

–  Adoption and foster-parent leave: both of the adoption/foster parents are entitled to four 
consecutive weeks of leave for the adoption of a child. Both adoption parents are eligible 
for adoption benefits equal to 100 % of their salary during leave.  

–  Fathers  have  the  right  to  attend  the  birth  of  their  child  and  an  additional  two  days  of 
paternity  leave  which  can  be  taken  at  any  time  within  the  following  four  weeks.  The 

368  Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-01889. 
369  ETA Article 1 Section 2, GETA, Article 1 Section 2.  
370  Infringement procedure of 24 January 2013, infringement no. 2013/45 
371   Case C-252/13 Commission v the Netherlands [2014], ECR n.y.r.  
372  Act of 16 November 2001, published in Law Gazette 2001, 537. 

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current  Government  has  recently  proposed  a  plan  to  extend  the  right  to  paternity  leave 
with three additional days of (unpaid) leave to a total of five days.373   

In  August  2011,  the  Government  proposed  a  bill  to  Parliament  in  which  several  of  the 
procedural regulations concerning parental leave and adoption leave will be changed in order 
to make it easier for workers to take leave and to arrange this leave in such a (flexible) way 
that it will meet their specific needs. This bill has been discussed several times in Parliament, 
but it has not been voted on yet.374 

4. Statutory schemes of social security  

There is no specific national legislation prohibiting discrimination in statutory social security 
schemes.  The  Government  abolished  –  sometimes  after  it  had  been  forced  to  do  so  by  the 
courts  on  the  ground  of  their  application  of  EU  law  –  many  discriminatory  provisions  in 
social security laws after Directive 79/7 came into force. Insofar as there are still instances of 
direct or indirect discrimination in this area, Dutch citizens may refer directly to the Directive 
or to Article 26 of the ICCPR.375 All of these provisions have in fact often been used in court 
cases, leading to the eradication of the most important instances of sex discrimination in this 
area. In the recent past, most discussions in this area were about the right of self-employed 
women to be covered under the statutory scheme that provides women with a pregnancy and 
maternity benefit. After they were excluded from this scheme in 2004, the Government, after 
strong  pressure  by  women’s  NGOs,  decided  to  re-include  self-employed  women  in  this 
scheme in 2008. In 2014, the UN CEDAW Committee ruled that the Dutch State had violated 
the  CEDAW  Convention  by  abolishing  the  maternity  leave  scheme  applicable  to  self-
employed women up to 2004 and advised the Dutch State to compensate women who gave 
birth between 2004 and 2008.376 

5. Self-employed persons  

It  is  essential  to  note  that  the  number  of  self-employed  persons  has  been  increasing  in  the 
Netherlands,  and  that  they  have  been  experiencing  severe  consequences  of  the  recent 
economic downturn. In the GETA and the ETA, self-employment is brought under the scope 
of the equal treatment norms. It is prohibited to discriminate as regards ‘the conditions for and 
access  to  the  liberal  professions  and  with  regard  to  pursuing  the  liberal  professions  or 
development within them’. Although the term ‘self-employment’ is not used in this context, 
giving  a  broad  interpretation  to  the  term  ‘liberal  profession’  will  guarantee  that  not  only 
doctors, architects etc. are covered, but also freelancers, sole traders, entrepreneurs, etc. The 
NIHR does indeed interpret this term widely. 

6. Goods and services 

Sex discrimination in the area of goods and services has been covered under the GETA since 
as  early  as  1994.  For  that  reason,  the  Government  did  not  deem  it  necessary  to  implement 
Directive 2004/113. The only change that was made is that – with respect to offering goods 
and services – a prohibition on sexual harassment was added to the GETA.  

373  Kamerstukken II, 2013-14, 32 855 no. 15.  
374  Wet Modernisering regelingen voor verlof en arbeidstijden; Kamerstukken II, 2010/11 32 855, nos. 1-17.  
375  Dutch courts do have the power to strike down legislation that violates any directly applicable provision of 
international law (under Articles 93 and 94 of the Constitution). Constitutional review by the Courts is not 
possible, however, according to Article 120 of the Constitution. Therefore, a Constitutional ‘equality review’ 
does not exist. 

376  See CEDAW/C/57/D/36/2012, online at 

http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Jurisprudence.aspx, accessed 22 May 2014. 

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GETA Article 7 lays down the prohibition of making a distinction which is applicable to 

(in brief): 
– 
– 
– 

the supply of or access to goods or services, which also includes all forms of education;  
the provision of career orientation and guidance (loopbaanoriëntatie); and 
advice or information regarding the choice of an educational establishment or career. 

It is furthermore specified in this Article that the GETA only applies to the above-mentioned 
areas if the alleged discriminatory acts are committed either (a) in the course of conducting a 
business  or  exercising  a  profession,  (b)  by  the  public  service,  (c)  by  institutions  which  are 
active in the field of housing, social services, healthcare, cultural affairs or education, or (d) 
by private persons not engaged in carrying on a business or exercising a profession, but only 
insofar as the offer is made publicly. 

The  exception  of  positive  action,  provided  for  in  that  Directive,  is  also  included  in  the 

GETA.  

Dutch legislation concerning sex-segregated services is in conformity with the Directive 
and even goes beyond the requirements: Dutch equal treatment law in principle forbids sex-
segregated services  unless one  of  the  legal  exceptions  can  be  applied. These exceptions are 
comprehensively listed in the Equal Treatment Order (a Ministerial Decree). This boils down 
to  a  closed  system  of  possible  justifications  for  sex-segregated  services.  Article  4(5)  of  the 
Directive, however,  only  prescribes  that  sex-segregated  services  shall  have  a legitimate  aim 
and shall be proportional. Certain types of sex-segregated services can of course violate the 
principle of equality and non-discrimination, but examples of harmless and even favourable 
segregated services do exist as well. Dutch legislation on this issue may therefore be regarded 
as  unduly  restrictive.  An  open  system  of  justifications  (as  is  reflected  in  Article  4(5)  of 
2004/113) seems to leave sufficient room for favourable forms of sex-segregated services, but 
at  the  same  time  is  adequate  in  ruling  out  discriminatory  and  undesirable  kinds  of  sex-
segregated services. 

Providing goods and services (by means of laws, decrees, subsidies, etc.) by government 
institutions  is  excluded  from  the  scope  of  the  equal  treatment  laws.  Bringing  all  unilateral 
governmental decisions and acts under the scope of the GETA (and subsequently under the 
enforcement by the NIHR) would mean that the margins of appreciation of national and local 
governments about how to construct their policies and laws or regulations would be severely 
limited. In addition, the need to bring these unilateral governmental decisions and acts within 
the ambit of the GETA could clash with some fundamental features of the Dutch legal system, 
e.g.  the  fact  that  the  Constitution  excludes  the  possibility  of  a  constitutional  review  of 
legislation  (Article  120  of  the  Constitution)  and  that  all  government  acts  are  already 
treatment  and 
‘governed’  by  Article  1  of 
discrimination). In addition, there is a refined system of administrative appeal/administrative 
courts  in  the  Netherlands,  to  which  cases  of  direct  and  indirect  discrimination  can  be 
submitted. 

the  Constitution  (prohibiting  unequal 

7. Enforcement and compliance aspects 

The equal treatment Acts protect against victimisation, dismissal and against other forms of 
disadvantages as a result of the fact that a person has invoked the statutory equality Act or has 
otherwise  assisted  in  proceedings  under  these  Acts,  e.g.  by  means  of  testimony.  This  is  in 
accordance  with  the  standards  in  the  directives.  However,  research  shows  that  victims  of 
discrimination  are  nevertheless  very  hesitant  to  bring  (official)  complaints  or  to  commence 
judicial proceedings.377 

377  See the report: M. van Genugten & J. Svensson Dubbel de dupe? Een studie naar de benadeling van 
werknemers die ongelijke behandeling aan de orde stellen University of Twente/ CGB, 2010. To be 
downloaded from: http://www.mensenrechten.nl/publicaties/detail/10028, accessed 31 May 2014. 

186  

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The ETA and GETA have a provision concerning the burden of proof that is in line with 
the  directives.  The  partially  reversed  burden  of  proof  also  applies  in  group  actions  under 
Article  3:305a  Civil  Code  and  Article  1:2(3)  of  the  General  Act  on  Administrative  Law. 
Strictly speaking, the partially reversed burden of proof does not apply in procedures before 
the  NIHR.  However,  on  a  voluntary  basis  the  Commission  may  apply  it  in  its  procedures. 
There is some discussion about the question whether the burden of proof rules are applicable 
in cases of victimisation.378 

Sanctions in the event of discrimination are imposed by the courts. (In the following we 
leave aside criminal sanctions for discriminatory offences, since they are hardly ever imposed, 
especially  not  in  the  case  of  sex  discrimination.)  According  to  the  GETA  and  the  ETA, 
discriminatory dismissals and victimisation dismissals are voidable. The employee can ask the 
court to invalidate the termination of the contract and can thereby claim wages. He/she can 
also  demand  to  be  reinstated  in  the  job,  or  he/she  can  claim  pecuniary  damages  under  the 
system  of  sanctions  in  general  administrative  law,  contract  law  and/or  tort  law.  However, 
damages are hardly ever claimed (let alone awarded) in cases of discrimination. Contractual 
provisions which are found to be in conflict with the GETA and the ETA shall be considered 
null and void. If the claim or complaint has been brought by interest groups the sanctions are 
similar. 

The GETA and ETA mention some additional ‘sanctions’. Sanctions under these laws are 
imposed  by  the  NIHR,  not  by  the  courts.  Under  Article  13(2)  GETA,  the  NIHR  may  make 
recommendations  to  the  party  found  to  have  made  an  unlawful  distinction.  Under  Article 
13(3) the NIHR may also forward its findings in an Advice to the Ministers concerned, and to 
organisations  of  employers,  employees,  professionals,  public  servants  (consumers  of  goods 
and services) and to relevant consultative bodies. Under Article 15(1) the NIHR may initiate a 
legal action with a view to obtaining a court ruling that conduct contrary to the relevant equal 
treatment legislation is unlawful, requesting that such conduct be prohibited or requesting an 
order that the consequences of such conduct be rectified. This power must be considered in 
light of the fact that the NIHR’s Opinions are not binding. The NIHR has never made use of 
this  possibility.  It  is  seriously  doubted  in  academic  legal  circles  whether  the  range  of 
sanctions available under the equal treatment legislation is in conformity with the requirement 
that sanctions be ‘effective, proportionate and dissuasive’. 

Access to the courts is ensured for victims of discrimination. Also, interest groups whose 
aim is to help victims of discrimination or to combat discrimination have access to the courts. 
There  is  a  system  of  free  legal  aid  for  people  with  a  low  income,  although  this  has  been 
restricted in recent years as part of austerity measures. Access to the NIHR is free of charge. 

The  NIHR  is  the  main  officially  designated  equality  body.  In  addition  to  being  the 
National  Human  Rights  Institute,  its  task  is  to  hear  complaints  (from  individuals  and 
organisations)  about  discrimination  (and  to  give  non-binding  opinions),  to  give  advice  to 
organisations  that  want  to  revise  their  policies,  to  monitor  developments  and  to  advise  the 
Government with respect to the implementation of anti-discrimination legislation and/or any 
necessary  revision  of  this  legislation.  Secondly,  there  is  an  organisation  called  ‘Art.  1’ 
(referring to Article 1 of the Constitution.) This organisation now covers all of the Article 19 
TFEU non-discrimination grounds, including sex discrimination, and is officially designated 
as one of the equality bodies. It mainly has a role in assisting victims and in monitoring the 
occurrence of discrimination. In addition to these organisations at the national level, there are 
so-called  Anti-Discrimination  Bureaus  (anti-discriminatievoorziening,  ADV)  at  the  local 
level.379  In  2009,  these  local  ADVs  were  given  a  legal  basis  in  the  Act  on  Local  Anti-

378  See S. D. Burri ‘Bewijsperikelen bij vermeende discriminatie. Jurisprudentie van het HvJ EU over 

bewijslastverdeling in gelijkebehandelingszaken, de zaken Kelly (C-104/10) en Meister (C-415/10).’ 
Tijdschrift voor de Arbeidsrechtpraktijk (2012-8) pp. 360-365 for an overview of the relevant provisions of 
Dutch national law on the burden of proof. 

379  The ADVs were designated as Equality Bodies in the Memorandum of Explanation to the Act on Local Anti-

Discrimination Bureaus; Kamerstukken II, 2007/08, 31 439, no. 3, p. 7. 

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Discrimination Bureaus.380 All municipalities are obliged to establish and subsidise an ADV. 
The  main  task  of  these  Bureaus  is  to  assist  victims  of  discrimination  and  to  monitor  the 
situation in this regard. 

Social partners play an important role, although this has not been regulated in the equal 
treatment laws. As regards sex discrimination the trade unions play an especially active role 
in the field of equal pay. Also, they stimulate the discussion on positive action (e.g. by means 
of quotas). 

Collective agreements are used as a means to supplement the legal rules governing labour 
contracts.  A  collective  agreement  is  binding  on  all  employers  who  are  (represented  by  the) 
parties  to  the  collective  agreement  and  all  employees  of  an  employer  that  is  a  party  to  the 
collective agreement (regardless of membership of a trade union). In addition, the collective 
agreement can be declared binding by the Minister for Social Services and Employment. In 
case of a binding collective agreement, all arranged regulations are binding on all contracts: 
individual employment contracts may only differ in favour of the employee. The length of the 
validity  of  collective  agreements  is  at  most  5  years.  In  collective  agreements  one  can  find 
rules  concerning  inter  alia  the  (supplementary)  right  to  childcare  facilities,  supplementary 
rights to care leave (including parental leave), et cetera.  

8. Overall assessment  

The  overall  impression  is  that  the  implementation  of  the  EU  gender  equality  acquis  is  to  a 
great  extent  satisfactory.  The  Government  has  made  some  amendments  in  reaction  to 
questions asked by the European Commission.381 However, there are some issues that are still 
debatable.  For  example,  it  is  argued  that  the  Dutch  Government  has  an  unduly  narrow 
interpretation  of  the  prohibition  of  an  ‘instruction  to  make  a  distinction’  and  that  it  has 
adopted an unduly restrictive approach as regards the ‘scope of liability’ for discrimination. 
The fact that the partially reversed burden of proof is not applicable in victimisation claims 
also seems to fall short of EU requirements. In addition, there is no explicit right to return to 
the same or a comparable job after having taken pregnancy or maternity leave. The latter is 
the  subject  of  an  infringement  procedure  started  by  the  European  Commission  in  January 
2013.382  In  addition,  the  requirement  that  sanctions  should  be  ‘effective,  dissuasive  and 
proportionate’ is certainly not met by Dutch legislation, which seems to be the most serious 
shortcoming of the implementation of EU law in this respect. Finally, Dutch equal treatment 
law concerning sex-segregated services is in line with the requirements. However, it can be 
argued  that  the  current  closed  system  of  justifications  regarding  sex-segregated  services  is 
unduly  restrictive,  as  it  rules  out  certain  favourable  and  desirable  forms  of  sex-segregated 
services as well. 

NORWAY – Helga Aune 

1. Implementation of central concepts 

As to the concepts of direct and indirect discrimination, the general clause of the 
Gender  Equality  Act  (GEA),  Section  5,  states  that  direct  or  indirect  differential  treatment 
(discrimination) of women and men is not permitted. Overall, the concepts are in line with the 
EU acquis. 

380  In Dutch: Wet gemeentelijke antidiscriminatievoorziening, which came into force on 27 June 2009, published 

in the Law Gazette 2009, 313. 

381  Letter dated 31 January 2008 (no. 2006-2444), with reference to the infringement procedure of 18 December 

2006, infringement no. 2006/2444. 

382  Infringement procedure of 24 January 2013, infringement no. 2013/45. 

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Positive  action  is  explicitly  permitted,  but  has  been  interpreted  with  a  limitation  not 
inherent  in  the  wording  of  the  GEA.  GEA  Section  7  explicitly  states  that  only  different 
treatment that promotes gender equality in conformity with the purpose of this Act is allowed. 
The same applies to special rights and rules regarding measures that are intended to protect 
women in connection with pregnancy, childbirth and breastfeeding. Further provisions as to 
which  types  of  different  treatment  are  permitted  include  provisions  regarding  affirmative 
action in favour of men in connection with the education and care of children. One of the few 
measures  that  have  been implemented  regarding  positive  action is an  obligation  to  secure a 
balanced gender representation on company boards. The boards in all state-owned companies, 
as  well  as  public  limited  companies  in  the  private  sector  are  obliged  to  have  a  minimum 
representation  of  40 %  of  each  gender.  The  provisions  of  Norwegian  legislation  in  their 
wording are further-reaching and  more progressive regarding the promotion of the status of 
women than the current acquis, as is shown by the judgment of the EFTA Court in Case No. 
E-1/02,  in  which  a  measure  to  increase  the  number  of  women  in  academic  positions  was 
found to be in contravention of Directive 76/207/EEC Article 3(1). Since this judgment, only 
few measures for positive action have been implemented. GEA Section 10 bans instructions 
regarding  acts  that  are  in  contravention  of  provisions  of  this  Act.  It  is  specified  that  such 
instructions  shall  be  regarded  as  illegal  differential  treatment.  No  case  law  has  emerged  on 
this  theme.  GEA  Section  8  bans  both  gender-based  harassment  and  sexual  harassment.  The 
law  defines  ‘gender-based  harassment’  as  unwelcome  conduct  related  to  a  person’s  gender 
that  has  the  effect  or  purpose  of  offending  another  person’s  dignity.  The  term  ‘sexual 
harassment’ is defined as unwelcome sexual attention that is offensive to the object of such 
attention. It is the employer and management of organisations or educational institutions that 
shall be responsible for preventing and seeking to preclude the occurrence of harassment in 
contravention  of  provisions  of  the  GEA  within  their  sphere  of  responsibility.  Gender-based 
harassment  may  be  brought  before  the  Gender  Equality  Ombud  and  the  Gender  Equality 
Tribunal, whilst the prohibition against sexual harassment shall be enforced by the courts of 
law. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The  legal  standard  ‘equal  pay  for  work  of  equal  value’  is  codified  in  GEA  Section  21,  in 
which the starting point is that women and men in the same enterprise shall receive equal pay 
for the same work or work of equal value. The pay shall be fixed in the same way for women 
and men regardless of sex. The term ‘pay’ means the ordinary remuneration for the work as 
well as all other supplements or advantages or other benefits provided by the employer. This 
aspect  normally  poses  no  difficulties,  although  there  have  been  issues  relating  to  part-time 
workers  (mainly  women)  receiving  less  favourable  employment  insurances,  which  usually 
also  provide  additional  occupation  pension  rights.  After  the  introduction  of  WEA  Section 
13-1(3)  in  2005,  in  which  the  discrimination  of  an  employee  who  works  part  time  or  on  a 
temporary basis is banned, discrimination because of part-time work has received additional 
attention.  It  is  especially  in  terms  of  other  benefits  provided  by  the  employer  (including 
pensions)  that  large  female-dominated  professions  have  found  that  they  received  less  than 
other  groups.  The  right  to  equal  pay  for  the  same  work  or  work  of  equal  value  applies 
regardless of whether such work is connected with different trades or professions or whether 
the  pay  is  regulated  by  different  collective  wage  agreements.  Whether  the  work  is  of  equal 
value is to be determined after an overall assessment, in which importance is attached to the 
expertise  that  is  necessary  to  perform  the  work  and  other  relevant  factors,  such  as  effort, 
responsibility  and  working  conditions.  This  is  the  theory.  In  reality  it  has  proved  quite 
difficult for employees with different professional backgrounds to establish that their job is of 
equal  value.  As  the  employment  market  is  highly  gender-segregated  in  Norway,  there  are 
certain  professions  with  a high  proportion  of  women,  such  as  nurses,  and  other  professions 
with  an  equivalently  high  proportion  of  men,  such  as  engineers.  Key  justifications  for  pay 
differences between different professional sectors have been the ‘market value’ and ‘historical 

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differences’. The introduction of a system for group action might change all this, although no 
group litigation cases on equal pay have yet been heard. The Norwegian Public Report (Norsk 
Offentlig Utredning; NOU) 2008:6 showed that key differences regarding pay equality occur 
during maternity leave and because of the gender-segregated employment market.383 

2.2. Access to work and working conditions 
The implementation of the EU directives related to access to work and working conditions has 
overall been good. In relation to matters concerning pregnancy and the question of effective 
remedies, implementation is  not as effective  as  it  should  have  been.  GEA  Section  17  states 
that  in  connection  with  the  employment,  promotion,  dismissal  or  lay-off  of  employees,  no 
difference  must  be  made  between  women  and  men  in  contravention  of  Section  5.  The 
opinions  of  the  Gender  Equality  Ombud  and  Tribunal  in  relation  to  discrimination  in  the 
hiring  process  in  reality  are  quite  ineffective,  as  these  cases  are  only  heard  after  another 
applicant has successfully secured the vacant position, and as the Ombud and Tribunal have 
no power to grant compensation. In order to be awarded compensation a case must be filed at 
the ordinary courts. 

2.3. Occupational pension schemes 
There  are  no  gender-specific  differences  in  relation  to  occupational  pension  schemes  in 
Norwegian  law  and,  as  such,  relevant  EU  legislation  has  been  complied  with.  However,  a 
number of schemes operate on conditions requiring that a person has to work at least 14 hours 
weekly  before  participation  in  a  supplementary  pension  system  and  rights  to  benefits  are 
earned. In its judgment of 21 June 2013, in Case No. 20/2013, the Labour Court ruled that the 
threshold in a collective agreement requiring 14 hours of weekly work in order to be part of 
the additional pension system was deemed illegal and discriminatory, and in violation of the 
protection against discrimination against part-time workers in WEA Chapter 13 (based on the 
Part-Time Work Directive). The Labour Court’s judgment will most likely have consequences 
for similar thresholds of 14 hours’ weekly for participation in occupational additional pension 
Acts.384 To the expert’s knowledge, such amendments had not yet taken place in June 2014. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  general  regime  for  the  protection  of  pregnant  women  and  women  who  give  birth  is 
excellent in general, and most regulations in terms of financial benefits go further in terms of 
time than what is stipulated in EU law. Pregnant women with strenuous work and work with 
hazardous substances might have the right to a pregnancy allowance, if their employer is not 
able  to  adapt  their  workload  to  less  strenuous  work.  Prenatal  check-ups  are  free,  and 
employees  have  a  right  to  time  off  with  pay.  All  medical  expenses  during  pregnancy,  birth 
and  the  postnatal  phase  are  covered  by  the  national  insurance  scheme.  Protection  against 
dismissal while an employee is pregnant is provided for in WEA Section 15-9. An employee 
who  is  pregnant  or  is  on  maternity  leave  cannot  be  dismissed  for  this  reason  alone.  Any 
employer  who  dismisses  an  employee  in  one  of  these  periods  must  prove  that  there  are 
reasonable grounds for the dismissal which are not related to the pregnancy or the period of 
absence from work. The GEA prohibits the discrimination of pregnant employees and those 
on leave. The law itself specifies the right to return to the same or a comparable job and the 
right to improved working conditions on the same terms as those that employees who were 
not on leave were granted during the related period. In addition, the law also states that the 

383  A Norwegian Public Report involves the appointment of a Committee to analyse issues or challenging topics, 
and to suggest possible solutions to bring forward the work. NOUs constitute part of the preparatory work of 
legislative law-making. Committee on Gender and Pay (Kjønn og Lønn), NOU 2008:6, see 
http://www.regjeringen.no/nb/dep/bld/dok/nouer/2008/nou-2008-6.html?id=501088, accessed 10 June 2014.  
384  The Norwegian Public Service Pension Fund (Lov om Statens Pensjonskasse) 28 July 1949 No. 26 Paragraph 
5, the Company Defined Pensions Act (Foretakspensjonsloven) 24 March 2000 No. 16 Paragraph 3-5, and the 
Defined Contribution-based Pension, (Innskuddspensjonsloven) 24 November 2000 No. 81 Paragraph 4-2. 

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employee upon returning from leave is entitled to ask for pay raise negotiations on an equal 
footing to the other employees who were not on leave. 

Parents,  including  adoptive  parents,  have  a  right  to  extensive  leave  from  work  as 
stipulated in the Working Environment Act (WEA), for a period of up to three years, although 
only one of these potential years off are paid leave. The right to benefits during this leave is 
laid down in the National Insurance Act (NIA). The parental benefit period in connection with 
birth is either 49 weeks at the full rate, or 59 weeks at the reduced rate. Of this, the mother 
must take three weeks of leave before the birth. The leave period is divided into three parts, 
where 10 weeks are reserved for each of the parents and cannot be transferred to the other. It 
is up to the couple to decide how to spend the remaining period of the leave. In order to earn 
the right to these benefits, parents must be employees and have had a minimum income for at 
least  6  of  the  10  months  immediately  prior  to  the  receipt  of  parental  benefits.  Under  the 
current  legislative  regime,  one  may  question  whether  or  not  the  Maternity  Leave  Directive 
92/85 has been implemented correctly under Norwegian law, as according to provisions in the 
NIA  the  maternity  leave,  defined  as  six  weeks  directly  after  the  birth,  is  included  in  the 
parental leave period. 

Non-working mothers are entitled to compensation in the form of cash in relation to the birth. 
Nursing mothers are since 1 January 2014 entitled to paid time off from work to breastfeed 
according to the WEA section 12-8.  

4. Statutory schemes of social security 

The  NIA  provides  a  basic  package  of  benefits  for  sickness,  invalidity  and  old  age,  which 
depend on the time of residency in Norway and the years of gainful employment. Legislation 
addressing occupational accidents, the Act of 16 June 1989, No. 65, makes it mandatory for 
all employers to ensure that all employees are covered through a private insurance paid by the 
employer which ensures full protection against accidents at work and occupational diseases. 
In  addition  there  are  various  laws  providing  compulsory  additional  benefits  in  case  of 
accidents or old-age benefits. The main reasons for excluding people from receiving benefits 
are that they work in minor employment, in non-remunerated jobs or in temporary jobs. The 
basic  package  is  granted,  but  no  additional  compensation  is  provided.  No  exclusions  have 
explicitly been stipulated in relation to the exclusions mentioned in Article 3(2) and Article 
7(1) of the Directive. Non-discrimination is safeguarded in the statutory scheme through the 
application  of  the  rules  of  the  GEA.  In  the  process  of  creating  and  amending  laws,  the 
Ombudsman takes part in the response to proposals for law. The problems in practice become 
more evident as a result of the gender-segregated employment market and the high percentage 
of women working part time. These two factors play a part as men and women have different 
outcomes in their accrued rights to an additional pension. 

5. Self-employed persons 

The NIA provides compulsory coverage for all people working or residing in Norway for 12 
months. This gives anyone basic coverage in terms of benefits. The level of the benefits will 
vary depending on the person’s previous income. Legislation is gender neutral in its wording. 
As Directive 86/613/EEC and later Directive 2010/41/EC385 has so few requirements that are 
targeted and specific, Norwegian legislation is satisfactory. However, in light of the existing 
gender-segregated employment market in Norway, key areas must be highlighted in order to 
focus on areas where equal treatment regardless of sex is not always achieved. This especially 
concerns helping spouses and their economic independence. The situation may be improved 
especially by strengthening the helping spouse’s right to individual rights. Helping spouses do 

385  Adopted as part of the EEA Agreement through the EEA-Committee’s decision of 1. July 2011. As no 
amendments in national legislation were necessary, the adoption was in force as from the same date. 

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not  have  individual  rights  under  the  additional  pension  system  of  the  NIA.  The  married 
couple must agree on how much income is to be reported for each of the parties when filing 
the  tax  return  at  the  end  of  the  year.  If  no  income  is  reported  for  the  helping  spouse,  she 
remains ‘invisible’. Legal measures should provide helping spouses with individual rights to 
pay, pension credits, holiday pay and social security benefits, so that helping spouses do not 
have  to  depend  on  the  goodwill  of  their  spouse  to  receive  compensation  for  their  work. 
Norway has a low number of self-employed women. They did not traditionally fully benefited 
from  the  good  maternity  rights  and  social  security  benefits  which  follow  from  public 
employment. Self-employed women have since 2008 received full maternity benefits. 

6. Goods and services 

Directive 2004/113/EC is implemented in the EEA Agreement. The relevant provisions of the 
Directive  are  covered  by  the  GEA,  but  following  our  traditional  legal  technique  it  is  not  a 
copy out. Whether or not this transposition is sufficient to make the wording of the Directive 
known to the public might be discussed. Existing Norwegian legislation is, as was mentioned 
before,  considered  as  meeting  the requirements  of the  Directive  through  the  wording  of the 
(GEA), see Sections 1, 2 and 5. Section 1 states that the Act shall promote gender equality, 
and  in  particular  aims  to  improve  the  position  of  women.  Section  5  states  that  direct  or 
indirect  differential treatment  of  women  and  men  is  not  permitted.  Section  2  states that  the 
Act shall apply to all areas, except for a clause granting the King, i.e. Government, the power 
to decide by means of a Regulation about women in military service that women generally or 
in part may be exempted from the provisions in the GEA. The GEA is therefore not limited to 
the employment market.  

The concepts of ‘goods’ and ‘services’ are not defined in national legislation. Case law 
will  be  interpreted  as  closely  as  possible  in  line  with  the  approach  taken  by  the  CJEU. 
However, according to the GEA, the prohibition against discrimination on the ground of sex 
has been applied to health services, all public funded, with no concern as to whether or not it 
is a service or goods offered. See the cases of the Tribunal: 2/2006 (routines for finding breast 
cancer  versus  prostate  cancer),  9/2006  (egg  donation  versus  sperm  donation),  4/2003 
(different  prices  for  sterilisation  of  men  and  women)  and  1/2004  (sex  as  actuarial  factor  in 
calculation of insurance premiums covering income loss due to sickness and accidents). 

7. Enforcement and compliance aspects 

Protection against victimisation is implemented in GEA Section 9, which states that no person 
may  be  subject  to  reprisal/disciplinary  action  for  having  presented  claims  of  breach  of  the 
GEA or having implied that such a complaint may be brought. The same rule applies to any 
witnesses  to  such  actions.  The  burden  of  proof  is  regulated  in  the  GEA,  Section  27.  In  all 
discrimination cases where there are circumstances that give reason to believe that there has 
been  direct  or  indirect  differential  treatment  in  contravention  of  the  GEA,  such  differential 
treatment  shall  be  assumed  to  have  taken  place  unless  the  person  responsible  proves  on  a 
balance  of  probabilities that  such  differential treatment  nonetheless  did  not  take  place. This 
applies  equally  to  situations  of  reprisals.  This  has  been  interpreted  by  the  Ombud  and  the 
Tribunal  to  mean  that  as  long  as  there  are  objective  facts  that  can  substantiate  the  case  the 
burden  of  proof  shifts  to  the  employer.  Various  kinds  of  administrative  remedies  are 
established,  such  as  orders  to  stop  any  discriminatory  practice  and  the  duty  to  provide 
information  to  the  Ombud  and  the  Tribunal.  Norway  has  a  free  low-threshold  complaint 
system for gender equality and other discrimination grounds. The Gender Equality and Anti-
Discrimination  Ombud  accepts  cases  of  gender  discrimination  and  will,  after  having  heard 
both  parties,  issue  a  decision  as  to  whether  she finds  that  discrimination  has  taken  place  or 
not.  The  Ombud’s  decision  may  be  appealed  before  the  Equality  and  Anti-Discrimination 
Tribunal. The Ombud/Tribunal system works effectively to such an extent that few cases are 
handled  by  the  ordinary  courts.  The  Ombud  and  the  Tribunal  do  not  have  the  mandate  to 
award compensation according to the GEA, Section 26, but they can recommend the party to 

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pay  compensation  in  cases  where  a  party  is  found  to  have  acted  in  breach  of  the  GEA.  As 
such  agreements  are  private,  neither  statistics  as  to  the  level  of  compensation  nor  as  to  the 
number of agreements exist. Cases of discrimination may be handled by the ordinary courts, 
but  between  1985  and  June  2008  there  were  fewer  than  30  cases.  Cases  alleging  that 
collective  agreements  contain  clauses  that  are  discriminatory  may  be  taken  to  the  Labour 
Court  by  one  of  the  parties  to  the  agreement.  The  Labour  Courts  have  only  handled  fewer 
than 15 cases of alleged sex discrimination.386 

8. Overall assessment 

The overall implementation of the EU gender equality 
is satisfactory. As there is very 
little  case  law  from  the  ordinary  courts  concerning  the  GEA,  little  of  the  practice  from  the 
CJEU is referred to in national judgments. The Recast Directive (2006/54/EC) as well as all 
other gender equality directives have been implemented through the EEA Agreement and are 
covered in national legislation mainly through the GEA, the WEA and the NIA. One of the 
greatest  challenges  in  the  future  is  to  bridge  the  gap  between  the  legislation  on  the 
individual’s right  to  protection  against  discrimination  and  the  structural  phenomena that are 
the basic foundations of discrimination which may therefore occur on an individual basis. For 
Norway,  this  concerns  for  instance  the  gender-segregated  employment  market  and  the 
extensive  use  of  part-time  work  among  women.  CEDAW  Article  5a  may  be  the  useful 
legislative tool in this respect.  

acquis 

POLAND – Eleonora Zielińska 

1. Implementation of central concepts 

Equal treatment of women and men at the workplace and in access to social security benefits 
is  traditionally  a  matter  of  constitutional  values  and  is  included  in  the  Article  33  of  Polish 
Constitution. The equality rule and the prohibition of discrimination (direct and indirect, due 
to  various  reasons,  including  sex)  are  provided  for  in  the  Labour  Code  and  repeated  (with 
some  modifications)  in  the  Law  on  the  Promotion  of  Employment  and  Institutions  of  the 
Labour Market, in the Law on Social Security Systems and in the Law on Capital Pensions, as 
well  as  in  the  Law  on  the  implementation  of  several  EU  equality  directives  (further: 
Antidiscrimination Law), introduced in 2010.  

The  most  developed  regulations  on  equality  are  contained  in  the  Labour  Code,  which 
considers the equality rule as one of the fundamental principles of labour law, meaning that 
other provisions of labour law and their interpretation must be consistent with this rule. It also 
contains  the  definition  of  direct  and  indirect  discrimination,  harassment  and  sexual 
harassment.  In  addition,  it  permits  positive  action,  prohibits  instruction  to  discriminate  and 
protects from victimisation. According to the Labour Code, direct discrimination is taken to 
occur  where  one  employee,  on  one  or  more  grounds,  has  been,  is  or  could  be  treated  in  a 
comparable situation less favourably than other employees. After the 2008 amendments, the 
legal definition of indirect discrimination now includes an additional reference to hypothetical 
situations  and  also  mentions,  in  addition  to  particularly  disadvantageous  situations, 
unfavourable  disproportions.  It  also  makes  reference  to  ‘legitimate  aim’  and,  as  regards  the 
means to achieve this aim, to the principle of proportionality.  
  While  describing  the  area  in  which  indirect  discrimination  may  occur,  the  amended 
Labour  Code  refers  to  establishment  and  termination  of  employment,  conditions  of  work, 
promotion  and  access  to  training  in  order  to  upgrade  professional  qualifications.  The 
definitions  of  harassment  and  sexual  harassment  in  the  Labour  Code,  as  improved  in  2008, 
reflect  a  clear  distinction  between  sexual  harassment  and  harassment  based  on  sex.  In 

386  For information on cases, see generally http://www.lovdata.no/, accessed 10 June 2014.  

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addition, the definitions of harassment and sexual harassment refer to the effect of creating an 
intimidating,  hostile,  degrading,  humiliating  or  offensive  environment.  The  relevant 
provisions  also  explicitly  reflect  the  idea  that  discrimination  includes  less  favourable 
treatment,  based  on  a  person’s  rejection  of,  or  submission  to,  harassment  or  sexual 
harassment.  

The  Labour  Code  provides  for  protection  against  worse  treatment  in  case  of  filing  a 
discrimination  claim,  not  only  for  the  employee  concerned,  but  also  for  persons  supporting 
and  assisting  him/her.  The  prohibition  of  retaliation  now  also  covers  other  kinds  of 
unfavourable treatment besides dismissal from work. In comparison to the Labour Code, the 
Antidiscrimination Law includes a slightly different wording and context of the definitions of 
direct  and  indirect  discrimination,  as  well  as  the  definitions  of  harassment  and  sexual 
harassment  (both,  however,  quite  unfortunately  labelled  as  sexual  harassment,  just  as  they 
were before the 2008 amendments to the LC). The Antidiscrimination Law also introduces the 
new notion of ‘unequal treatment’, unknown to the Labour Code, and states that it covers one 
or  more  forms  of  conduct  constituting  direct  and  indirect  discrimination,  harassment  and 
sexual  harassment  as  well  as  less  favourable  treatment  connected  with  the  rejection  of  or 
submission to harassment or sexual harassment, and also the encouragement to display such 
behaviour.  In  addition,  the  Antidiscrimination  Law  provides  for  the  possibility  of  awarding 
special damages in situations where the violation of the equal treatment principle occurs with 
regard  to  pregnancy  or  maternity  (or  paternity)  leave.  The  protection  is  applicable  both  by 
virtue  of  the  law  and  upon  request  for  enforcement.  Although  in  such  a  case  the  special 
protection provided for victims of discrimination, including a reversal of the burden of proof, 
applies, neither this provision of the Antidiscrimination Law nor any provision of the Labour 
Code explicitly states that discrimination includes any less favourable treatment of a woman 
related to pregnancy or maternity leave.  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The principle of equal pay for equal work or work of equal value for women and men is laid 
down in the Constitution and the Labour Code, without any legal justifications for differences 
in pay. This principle should be applied in all kinds of employment relationships.  

According to the Labour Code, work of equal value is work which requires employees to 
have comparable professional skills and qualifications (certified by documents or by practice 
and professional experience), as well as comparable responsibility and effort. In the light of 
the Supreme Court case law, equal tasks are tasks which are alike with regard to the type of 
work, the qualifications necessary in order to perform them, the conditions in which they are 
performed, as well as their quantity and quality. Tasks of equal value on the other hand are 
tasks  which  are different  as  to  the  type  of task,  yet  still sufficiently  similar  to  be  compared 
with  regard  to  the  above  legal  criteria.  Remuneration  is  understood  to  include  all  possible 
components,  irrespective  of  their  description  or  nature,  as  well  as  other  benefits  related  to 
employment,  granted  to  workers  as  payment,  either  in  money  or  in  kind.  The  literature 
mentions  in  this  regard  various  allowances  and  so-called  bonuses,  such  as  company  car, 
company  flat,  access  to  company  medical  services  and  paid  voluntary  medical  (or  other) 
insurance, as well as premiums, and severance pay. According to the case law of the Polish 
Supreme  Court  the  reimbursement  of  travel  costs  is  part  of  remuneration  (understood  as 
compensation payments). In other words, the aim of the equal treatment rule in this respect is 
to provide for standards, equal to all employees, with regard to income from employment in 
the wide sense. The LC regulations in this respect may be criticised as being contradictory to 
CJEU case law, as its provisions make remuneration dependent on the length of employment, 
regardless  of the type  of work  performed.  Nevertheless, in the light  of  Supreme  Court  case 
law,  an  employer,  arguing  that  different  qualifications  and  lengths  of  employment  were  the 
grounds  for  differentiation  of  remuneration  of  employees  performing  equal  tasks,  should 

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demonstrate  that  they  are  significant  with  regard  to  the  performance  of  those  tasks.  In  the 
opinion  of  the  Supreme  Court,387  ‘equal  work’  in  the  meaning  of  Article  183c  LC  refers  to 
tasks  actually  performed  by  the  employees,  not  to  the  description  of  the  obligations  of  the 
employer. In another judgment,388 the Supreme Court noted that the terms ‘equal work’ and 
‘work  of  equal  value’  have  different  meanings.  In  cases  where  the  infrastructure  of  the 
employer  includes  several  positions  which  involve  the  same  kind  of  work  (understood  as 
work that is identical with regard to the kind and qualifications necessary in order to perform 
it, as well as its quantity and quality), there is no need to compare those positions with respect 
to the criteria stipulated in Labour Code.  

The  particular  difficulties  in  the  application  of  Article  4  of  Directive  2006/54/EC  may 
explain the enduring lack in many enterprises of a system of occupational classifications for 
the purpose of determining remuneration, as well as the lack of a universal system for valuing 
work  and  establishing  criteria,  allowing  comparison  of  various  kinds  of  work.  In  the  public 
sector,  Ordinance  No.  1  of  the  Prime  Minister,  dated  7  January  2011,  on  the  principles  of 
description and job valuation in the civil service (based on the law on the civil service) can be 
considered as a sort of model regulation with regard to job valuation. This ordinance inter alia 
regulates  the  procedures  for  conducting  job  valuation  (by  a  specially  designated  team). 
Annexes  to  the  ordinance  include  model  job  descriptions,  stating  their  place  in  the 
organisational infrastructure of the office, a description of the main tasks, authorisations and 
powers, description of the complexity of the work and creativity, the necessary independence 
and  ability  to  show  initiative,  external  contacts,  factors  hindering  the  performance  of 
particular  tasks,  different  from  the  ones  traditionally  occurring  in  typical  administrative 
positions, as well as the required skills and professional experience. A brief analysis of this 
document has not revealed any criteria which might give rise to sex discrimination. However, 
in  the  methodology  of  evaluation,  the  key  element  is  the  assessment  of  the  significance  of 
each elementary or synthetic criterion, which requires a separate, more complex comparative 
analysis.  

In  the  private  sector,  however,  where  various  systems  for  evaluating  work  are  applied 
only  on  a  voluntary  basis,  different  surveys  have  proved  that  the  extent  of  work  valuation 
practices is limited (involving only 7 % of small enterprises, 9 % of medium-sized enterprises 
and  33  %  of  large  enterprises  (having  more  than  250  employees)).  In  most  of  those  cases 
simplified  methods  of  evaluating  have  been  used.  Worth  noting  is  also  the  very  low  social 
awareness of the use of work valuation for the elimination of the gender pay gap.  

According  to  case  law  however,  the  consequences  of  not  having  a  valuation  system  in  place 
may be severe, since – according to the Supreme Court – raising the remuneration of just one 
employee, while omitting others, employed in different positions, does not constitute unequal 
treatment,  and  does  not  violate  the  prohibition  to  discriminate,  if  the  employer  has  not 
implemented  a  system  of  work  valuation  (in  extreme  cases  it  may  only  be  regarded  as 
violation of the principle of community life). Another obstacle in eliminating the gender pay 
gap  are  the  wage  confidentiality  clauses  that  apply  in  most  enterprises.  These  make  it 
extremely difficult for the employee to obtain knowledge about unequal pay. Due to the fact 
that  the  Labour  Code  contains  no  regulations  on  confidentiality  concerning  remuneration, 
different practices exist in particular enterprises. According to the law on unfair competition, 
the  prohibition  of  revealing  information  about  salary  may  be  justified  by  protection  of  the 
employer against such competition, as well as by protection of the privacy of the individual 
employee.  The  Constitutional  Court  in  its  judgment  of  7  May  2001(K.  18/00)  found  the 
provisions of the Act of 3 March 2000 on remuneration of persons in charge of legal entities 
owned  by  the  State  Treasury  for  at  least  50 %  to  be  compliant  with  the  Constitution  with 
regard  to  the  regulations  stipulating  the  obligation  to  disclose  the  remuneration  of  these 
persons,  explaining  that  this  information  is  not  subject  to  protection  in  the  same  way  as 
personal  details  or  trade  secrets.  However,  in  other  cases  the  situation  is  still  unclear, 

387  12 January 2010 – I PK 138/09.  
388  18 September 2008 – II PK 27/08.  

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especially  since  the  position  of  the  Supreme  Court  in  this  regard  has  so  far  been  rather 
ambivalent  and  the  Data  Protection  Plenipotentiary  strongly  advocated  in  favour  of  the 
confidentiality  of  wages.  In  such  circumstances  the  employees  wanting  to  obtain  this 
information are discriminated against, and usually find themselves in a hopeless situation. The 
turning  point  in  this  regard  may  be  the  Supreme  Court  judgment  of  25  May  2011  (II  PK 
304/10), in which the Court found that the fact that an employee disclosed to other employees 
information covered by the so-called salaries confidentiality clause, in order to prevent unfair 
treatment  and  wage-related  forms  of  discrimination, cannot in  any  way  serve  as  ground  for 
dissolution  of  his  contract  of  employment.  The  introduction  of  a  transparent  system  of 
remuneration, permanent monitoring of wages from a gender perspective and clear rules for 
disclosing  information  on  individual  wages  may  at  least  be  a  partial  solution  to  these 
problems. 

the  exception  (referring 

2.2. Access to work and working conditions 
The  Constitution  guarantees  equal  access  to  employment,  promotion  and  positions.  This 
principle  is  laid  down  in  the  Labour  Code,  underlining  that  it  also  means  equal  access  to 
vocational  training,  upgrading  professional  qualifications,  regardless  of  whether  the 
employment is full-time or part-time. This principle applies to every employee regardless of 
the label of her/his work contract; essential in this respect are conditions in which work has to 
be performed (under another person’s guidance as to the place, time and conditions of work).  
The  law  states  that  the  principle  of  equal  treatment  does  not  affect  the  decision  not  to 
employ  someone  because  of  her/his  sex  if  this  is  justified  due  to  the  type  of  work,  the 
conditions  for  its  performance  or  the  occupational  requirements  placed  on  employees.  The 
definition  of  acceptable  exceptions  to  the  principle  of  equal  treatment  includes  reference  to 
the  principle of  proportionality  and  to  the  notion  of  ‘legitimate  aim’  and provides  a  precise 
formulation  of 
to  ‘genuine  and  determining  occupational 
requirements’) in cases related to the character of work to justify the fact of not being offered 
an employment contract based on the grounds listed in the Labour Code. The differentiation 
based  on  age  in  establishing  conditions  of  work,  promotion  and  access  to  training  raising 
professional  qualifications  is  exceptionally  allowed  when  the  criterion  of  length  of 
employment is applied. Acceptable is also the differentiation of the situation of employees in 
order to protect parenthood or disability. Provisions of the Labour Code in this respect were 
supplemented  by  the  Antidiscrimination  Law,  which  contains  provisions  specifying  that,  in 
relation to employment, the prohibition of unequal treatment inter alia on the ground of sex, 
shall apply to: access to and receiving of professional training (including additional education, 
proficiency courses and requalification training (vocational orientation and reorientation), as 
well  as  professional  apprenticeships  (practical  training);  conditions  of  undertaking  and 
performing  economic  or  professional  activities,  in  particular  in  the  form  of  an  employment 
relationship or work on the basis of civil-law and mandate contracts (including the so-called 
managerial  contracts);  unpaid  employment  in  the  form  of  voluntary  work;  access  to  the 
activities  in  trade  unions,  organisations  of  employers  and  professional  corporations;  and 
access to and conditions for the enjoyment of publicly available instruments and services of 
the  labour  market.  As  a  result,  the  personal  scope  of  the  protection  against  discrimination, 
with regard to conditions of undertaking and performing economic and professional activities, 
has been significantly expanded.  

2.3. Occupational pension schemes 
According to the Law on Occupational Pension Schemes, this system may be applied to any 
person  employed  on  the  basis  of  a  contract  of  employment  (whether  appointed,  elected  or 
nominated for the relevant contract, or concerning a cooperation contract) on a full or part-
time basis for a period not shorter than three months. The category of employees entitled to 
this form of insurance also includes those employed in representative bodies of legal persons, 
on the basis of contract, designation or election, as well as members of agriculture production 
cooperatives,  or  cooperatives  of  farmers’  units.  Participants  in  this  scheme  also  include 
expressis  verbis  entitled  natural  persons  conducting  an  economic  activity  (self-employed 

196  

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persons), as well as partners of commercial law companies, mentioned in this law, which are 
subject  to  mandatory  retirement  and  disability  insurance.  The  aforementioned  Law  also 
explicitly authorises participation in the programme of workers receiving a retirement pension 
from  the  mandatory  social  security  system,  even  when  they  are  older  than  70. This  right  is 
granted to them for as long as they are employees. The limitations connected to the form of 
the employment contract and the minimum time limits for the employment are the only legal 
requirements  for  participating  in  the  system.  The  Act  on  Occupational  Pension  Schemes  of 
2004  has  solved  the  case  of  non-compliance  of  Polish  law  with  EU  law  by  eliminating,  in 
particular, the provisions that differentiated the required retirement ages for women and men.  

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  Labour  Code  –  after  amendments  introduced  by  the  laws  of  21  November  2008,  of 
6 December 2008 and of 5 November 2009, as well as amendments of 28 May 2013 and of 26 
July 2013389   – deals in a rather satisfactory fashion with the protection of pregnant women in 
employment  as  well  as  persons  on  maternity/paternity  or  parental  leave  (urlop  rodzicielski) 
and childcare leave (urlop wychowawczy).  

In particular, the Labour Code provides for a prohibition on employing pregnant women 
for work which is particularly heavy or detrimental to their health and the duty of an employer 
to assign a pregnant woman to another job in order to avoid exposure to any danger. If this is 
impossible  or  inadvisable,  the  woman  should  be  released  from  performing  work  while 
retaining full pay. A pregnant woman cannot be dismissed from work. In the opinion of the 
Supreme Court, it is irrelevant for the protection of pregnant women from dismissal whether 
the employee was aware of her pregnancy, the employer had been informed about this fact, or 
that  the  pregnancy  has  been  terminated  by  miscarriage.  The  only  thing  that  matters  is  the 
objective existence of pregnancy at the moment of dismissal. The Labour Code also contains 
the  prohibition  of  dismissal  during  maternity  leave  and  contains  an  explicit  guarantee  for 
women after maternity leave, regarding their return to their previous position (or, if that is not 
possible, to an equivalent position, corresponding with the relevant woman’s qualifications) 
with a remuneration equal to that received by other employees working in the same position 
who  did  not  profit  from  maternity  benefits.  Polish  labour  law  sees  maternity  leave  as  the 
personal  right  of  an  employee,  although  at  present  part  of  this  leave  may  be  taken  by  the 
father of the child (on the same conditions as the mother). The length of the paid maternity/ 
paternity/ parental leave is subject to permanent change. Since 17 June 2013 it may amount to 
52 weeks, which is the longest period in the history of Polish regulations. Entitled to the leave 
in this length are parents of all children born since 31 December 2012. It consists of 20 weeks 
of maternity leave (for one child), 6 weeks of additional leave and 26 weeks of parental leave 
(urlop rodzicielski). In case of multiple births, the length of these leaves (with the exception 
of the parental leave) are extended (maternity leave amounts to 31 weeks for twins, 32 weeks 
for  triplets,  35  weeks  for  quadruplets  and  37  weeks  for  quintuplets,  or  more  children,  in  a 
single  delivery  –  additional  leave  extends  to  8  weeks).  The  entire  leave  may  be  shared 
between the mother and the father, with the exception of the first 14 weeks after childbirth, 
which have to be taken by the mother.  

The  length  of  maternity/additional/parental  leaves  in  case  of  adoption  (of  one  or  more 

children simultaneously) is regulated along similar lines.  

Regardless of the above leaves, the father is entitled to paternity leave, which currently 
amounts to 2 weeks. It is fully paid and provides for protection against dismissal as well. The 
father  must  take  the  leave  before  the  child  reaches  the  age  of  1  (7  in  case  of  adopted  children). 
Entitled to the almost 1-year leave, related to parenthood, are not only parents employed on 
contracts, but all employees who pay for the social security fund, i.e. also those employed on 
order  contracts  and  the  self-employed.  Pregnancy  and  parenthood  benefits  of  uniformed 

389  Ustawa z dnia 26 lipca 2013 o zmianie ustawy kodeks pracy, Dz.U. 2013 poz.1028 (Law of 26 July 2013 

amending Labour Code, JoL 2013 Item 1028 ).   

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services  (police,  border  guards,  fireguards,  customs  officers,  prison  guards,  etc.)  have  also 
been adjusted to the level of regular employees.  

Additional  maternity  leave  and  parental  leave  may  be  combined  with  part-time 
employment  (not  more  than  half-time).  The  employer  is  not  obliged  to  grant  a  request  for 
part-time employment however. He may refuse it, if such mode of work is not possible with 
regard to the organisation and type of work. The employer is obliged to inform the employee 
about the reason for refusal in writing. Maternity leave may be initiated up to 6 weeks before 
the birth. Additional leave (6 weeks) may be divided in up to 2 parts, each of which being at 
least 1 week long. The 26 weeks of parental leave may be divided in up to 3 parts, each of 
which being at least 8 weeks long. The leave has to have a continuous character, meaning that 
parental  leave  has  to  start  immediately  after  additional  maternity  leave.  If,  for  example,  a 
mother  returns  to  work  for  a  short  period  and  then  takes  parental  leave,  she  will  only  be 
entitled to child-care leave (urlop wychowawczy). Renouncing even one day of the additional 
maternity  leave  will  result  in  the  expiration  of  the  right  to  the  remaining  leave,  including 
parental leave.  Parental leave may be taken by both parents simultaneously, although in such 
case  the  overall  amount  of  the  leave  must  not  exceed  26  weeks.  It  is  not  possible  for  both 
parents to take additional and maternity leaves simultaneously. For example, parents cannot 
simultaneously  take  3  weeks  each  of  additional  maternity  leave  (to  amount  to  the  total  6 
weeks allocated for this leave). 

During all of the above leaves the employees are entitled to allowances. During the first 
26 weeks of the leave (maternity and additional) the allowance amounts to 100 % of the last 
salary. During the next 26 weeks of parental leave it amounts to 60 %. If the mother declares 
beforehand that she will take the entire 52 weeks of the leave, then she will receive 80 % of 
the  last  salary  during  the  entire  leave.  Should  she  later  on  change  her  mind  and  stop  her 
additional  maternity  leave,  and/or  parental  leave,  entirely  or  partially,  she  will  receive  a 
supplement of the allowance to the 100 %. The unpaid childcare leave (urlop wychowawczy), 
to  which  both  parents  and  both  adoptive  parents  are  equally  entitled,  may  be  granted,  as  a 
general rule, for three years up to the child’s 5th birthday (since 17 June 2013; before it was 
until  the  4th  birthday)  and  divided  into  up  to  four  parts;  both  parents  may  take  it 
simultaneously for up to three months. Every worker is entitled to this childcare leave if he or 
she has been employed for at least 6 months (regardless of the place of employment). Every 
parent and adoptive parent is exclusively entitled to one month of childcare leave. As a rule 
this  right  cannot  be  transferred  to  the  other  parent  or  adoptive  parent.  During  the  parental 
leave  low-income  families  are  entitled  to  an  allowance  of  60 %  of the  minimum  wage.  For 
others this leave is unpaid.   

The Labour Code, among other things, includes the following provisions: prohibition on 
terminating an employment contract during childcare leave, the right to return to the same job 
or, if this is impossible, to an equivalent post, the inclusion of a period of childcare leave term 
into the period of employment, constituting the basis for calculation of employment benefits, 
as well as the recognition of the right of an employee, entitled to childcare leave, to request 
reduced working hours. Since 2008 there is a protective period of 12 months, during which 
the employer must not dissolve the employment contract with an employee who has returned 
from  maternity  (additional,  or  paternity/parental)  leave  and  decides  to  work  in  a  shortened 
working time schedule, instead of going on childcare leave. The employer is obliged to accept 
the employee’s choice. Such a contract can only be dissolved in the event of bankruptcy or 
liquidation of the enterprise or for disciplinary reasons. Of some importance is the decision of 
the Constitutional Tribunal that declared as unconstitutional, according to the principle of the 
protection  of  maternity,  the  government  regulation  which  stated  that  in  case  maternity 
allowances coincided with allowances connected with childcare leave, the first excludes the 
latter.  The  Labour  Code  provides  for  the  right  to  paid  time  off  in  case  of  emergencies  for 
family reasons.  

Since 2008 also other family-friendly measures have been introduced. For instance, the 
bases  of  the  retirement  and  disability  pensions  insurance  contributions,  paid  from  the  state 
budget during childcare leave have increased. The maternity leave payment for farmers was 
also increased. Currently there is also an extended maximum length of the period of payment 

198  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
of  sickness  benefits  for  pregnant  women  (270  days),  and  the  protection  of  unemployed 
women  during  pregnancy  and  after  giving  birth  has  been  improved.  Also,  the  possibility 
exists  to  use  the  enterprise’s  social  fund  for  the  development  and  maintenance  of  nurseries 
and kindergartens for their employees’ children, situated at the place of employment, or the 
release from payment of contributions to the employment fund for the period of 36 months, 
for  every  employee  continuing  work  after  return  from  maternity,  paternity  parental  or 
childcare  leave.  These  possibilities  have  been  extended  by  the  so-called  ‘Nursery  Law  of 
2011’, which provides that such care may be organised by local authorities, organisations and 
private persons. According to this law, new forms of care for children under the age of three 
may  be  introduced  (including  crèches,  group  babysitters,  day  clubs  and  legally  employed 
nannies, available to working parents of children under the age of three whose social security 
fees are related to the nation-wide minimum wage to be paid by the State). It should be noted 
that  the  amendment  of  the  Law  on  promotion  of  employment  and  institutions of  the labour 
market,  adopted  on  14  of  March  2014,390  provides  for  a  number  of  measures  aimed  at 
increasing employment of workers and taking care of children. It offers them, among others: 
activation benefits; grants for telework, as well as financing it for employers; employment to 
young mothers; and creating in-house nurseries and kindergartens.391 

The  Polish  rules  dealing  with  maternity  exceed  the  minimum  standard  of  protection 
provided  in  the  EU  directives  in  regard  to  the  length  of  paid  maternity/parental  leave.  The 
regulations may raise some criticism due to their complexity, and also because under Polish 
law almost all such leaves are generally designed as an individual right of the woman. Only 
paternity leave and one month of child-care leave are exclusive rights of the father. All other 
child-care-related rights of the father are in various ways closely connected with the right of 
the mother. This means that first, the employee father is not entitled to any part of maternity 
leave, additional leave or parental leave at all if the mother is not entitled to them. This may arise 
if, for example, she died during delivery and therefore did not use the maternity leave; or if 
she  was  not  employed  and  therefore  not  covered  by  social  insurances,  even  if  the  father  is 
insured.  Second,  if  the  mother  is  entitled  to  these  leaves,  the  father  can  take  advantage  of 
them  only  on  the  condition  that  the  mother  waives  her  right.  Third,  all  leaves  (except 
childcare leave) must be taken subsequently one after another, which excludes flexibility of 
any  kind.  Fourth,  taking  parental  leave  is  only  possible  directly  after  taking  the  additional 
maternity leave, meaning that despite the declared optional character of additional maternity 
leave,  taking  it  is  in  fact  obligatory  to  be  eligible  for  parental  leave.  There  is  also  no 
obligatory part of parental leave that has to be used by each of the parents.392 The regulation 
adopted in Poland may also be criticised with regard to the relatively short length (two weeks) 
of  the  non-transferable  leave  for  the  child’s  father.  In  2012,  28  600  fathers  took  paternity 
leave,  which  is  significantly  more  than  in  the  previous  years  (14  900  in  2011;  17  200  in 
2010),  when  the  duration of  leave  was  only  one  week.  In  2013,  six  times  more  father  took 
paternity leave than in 2012.393 The non-transferability of the leave is indicated as the main 
motive  for  taking  the  leave.394  In  the  view  of  the  expert,  there  may  be  a  risk  of  further 
excluding  women  from  the  labour  market  if  only  the  duration  of  leaves  connected  with 
childbirth  are  extended,  and  no  effective  attempts  are  made  to  change  the  collective  social 
mentality surrounding the division of tasks in the family. 

390  Dz. U. 2014 poz. 598  
391  http://www.mpips.gov.pl/aktualnosci-wszystkie/kobieta-rodzina-i-przeciwdzialanie-dyskryminacji/

art,6628,rodzice-na-rynku-pracy.html, accessed 9 September 2014.  

392  So: M.Latos-Miłkowska, Urlop rodzicielski (Parental leave), Monitor Prawa Pracy, No 8, p. 39 and 
B. Godlewska-Bujok, Implementacja dyrektywy 2010/18/UE dotyczącej urlopu rodzicielskiego 
(Implementation of the Directive 2010/18/UE on parental leave) in:, Prawo Europejeskie w praktyce 
(European Law in practice). http://pewp.pl/index.php?option=com_content&view=category&id=37&layout=
blog&Itemid=56. 

393  See: http://www.polskieradio.pl/42/275/Artykul/1159366,Urlop-ojcowski-staje-sie-w-Polsce-coraz-bardziej-

popularny-, accessed 14 January 2015. 

394  Boom na urlopy ojcowskie (Boom for paternal leaves), Rzeczpospolita 24 January 2013, 

http://www.rp.pl/artykul/973419.html. 

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Similar objections are raised with regard to child-care leave. The main criticisms concern 
the exclusion of the possibility to use the leave after the child reaches the age of five, which 
also  applies  in  case  of  adoption,  and  the  condition  that  parents  can  only  take  the  childcare 
leave together for four months. Even if these four months were qualified as individual rights 
of  each  parent,  this  is  certainly  not  the  case  with  the  other  32  months  of  this  leave.  Also, 
during this time only one of them has the right to shortened working time. This situation is not 
compliant with Directive 2010/18/EU.395 According to case law of the Court of Justice of the 
EU, if a Member State grants rights to leave exceeding the minimum length required by EU 
law, this means that EU regulations also apply to the duration of the leave that exceeds this 
minimum. 396 In addition, despite recommendations resulting from Directive 2010/18/EU, the 
Polish  Labour  Code  provides  insufficient  protection  for  the  employer.  The  current  notice 
period  of  two  weeks  seems  to  be  too  short  in  order  to  enable  the  employer  to  adjust  the 
organisation of work or to recruit a substitute.397 Furthermore, only very low-income families 
are  entitled  to  the  allowance  connected  with  child-care  leave,  the  value  of  which  is  only 
symbolic.  

4. Statutory schemes of social security 

The reform of the social security system carried out in 1998 made the system more universal 
and uniform in the sense that the application of the Social Security Law was no longer limited 
to  employees,  but  also  covered  persons  performing  work  not  based  on  an  employment 
relationship (e.g. the self-employed, performing work on the basis of an agency contract or a 
contract of mandate). The only group still to fall outside the scope of the Act are farmers, who 
are  covered  by  a  separate  Law  from  1990,  which  provides,  in  comparison  to  the  general 
system, limited benefits but at the same time requires very low contributions.  

In  the  current  system,  social  security  contributions  are  divided  into  the  following 
categories:  old-age  and  disability  pensions,  sickness  and  maternity  insurance,  insurance 
against accidents at work and occupational diseases. The protection against unemployment is 
regulated  in  the  Law  on  Social  Aid.  To  a  large  extent  the  current  statutory  social  security 
system seems to conform to the requirements of the EU regulations. This is also mainly true 
for  the  well-developed  anti-discriminatory  provisions.  It  should  be  mentioned  that  the 
Antidiscrimination  Law  explicitly  provides  that  the  horizontal  protection  enshrined  in  its 
provisions  also  applies  to  any  violation  of  the  principle  of  equal  treatment  in  the  access  to 
social security system.  

Since  2013,  the  heavily  criticised  difference  in  the  retirement  ages  of  women  and  men 
has been in the process of equalisation.  At the same time, the standard retirement age is also 
being increased, to eventually reach the age of 67. In case of men the age of 67 years will be 
reached by the year 2020 and for women by 2040. There is hope that this change may lead to 
a  future  reduction  of  the  gap  between  the  old-age  pensions  of  retired  women  and  men 
(according  to  estimations,  without  equalising  the  retirement  age,  the  old-age  pensions  of 
women  would  be  about  50 %  lower).  Nevertheless,  men  will  be  delayed  by  two  years  in 
obtaining retirement benefits, whereas women  may be delayed by up to seven  years; which 
may be perceived as gender-based discrimination. These objections are reinforced by mistrust 
in the operation of retirement funds, which were to earn money for future pensions but have 
thus far produced nothing but losses. On 6 December 2013 the Law on amendment of certain 
laws with regard to determination of the rules of paying out retirement benefits from means 

395  Directive of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by 
BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC. OJ L 68 of 18.3.2010. 
396  This was indicated by the First President of the Supreme Court in his opinion about the draft law, adjusting the 
Polish Labour Code to Directive 2010/18. Opinion of 20 December 2012 on the draft Law. Parliamentary 
Document No. 909, p. 3.  

397  Given the length of the childcare leave, it has therefore been suggested to extend the duration of the notice 

period regarding the intention to take the leave, to 30 days. M. Latos-Miłkowska, Ochrona interesu 
pracodawcy (Protection of the interests of the employer), Lexis Nexis, Warszawa 2013. 

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aggregated  in  open  retirement  funds  (OFE)  was  adopted.398  According  to  this  Law,  from  1 
April until 31 July 2014 members of OFE decided where they wanted to direct a part of their 
contributions:  to  the  OFE  of  their  choice  (as  before),  or  to  the  Social  Insurance  Institution 
(ZUS).    In  the  processes  of  calculating  for  retirement  benefits  paid  by  the  ZUS,  and  capital 
benefits paid by the OFE, tables of average life duration were applied, which are uniform for 
men and woman.399 

5. Self-employed persons 

The  Law  on  Economic  Activity  generally  stipulates  that  undertaking  and  performing  an 
economic  activity  is  free  to  anyone  on  an  equal  basis,  when  the  necessary  conditions  laid 
down  in  the  law  are  observed.  The  statutory  social  security  system  provides  for  the  same 
mechanisms  for  all  social  and  professional  groups,  including  self-employed  workers  and 
persons  co-operating  with  them.  Persons  performing  work  e.g.  on  the  basis  of  an  agency 
contract  or  a  contract  of  mandate  and  persons  co-operating  with  them  are  poorly  protected, 
although also covered by this system. In the context of this Law, the category of persons co-
operating with the self-employed person includes the spouse, but also other persons (children, 
including  adopted children,  and  parents, including  step-  and  adoptive  parents). However,  in 
order to be covered by the insurance, the spouse and other persons mentioned above must not 
only co-operate with the self-employed person, but must also share a common household with 
them.  Both  self-employed  persons  and  persons  co-operating  with  them  are  subject  to 
obligatory  (compulsory)  old-age  and  disability  insurance  and  insurance  against  accidents  at 
work and occupational diseases. The insurance against sickness and in the case of motherhood 
may be joined by these persons on a voluntary basis. According to provisions introduced by 
the law of 28 May 2013 on amendment of the Labour Code and certain other laws, a woman 
conducting economic activity may collect maternity benefits, not only during maternity leave, 
but also additional maternity leave and parental leave, just as a person employed on the basis 
of a labour law contract. In order to qualify for such benefits, no minimal insurance period is 
required.  A  mother  conducting  economic  activity  may  combine  running  the  company  with 
taking  care  of a  child,  which  will  not result in  losing  the  right  to  maternity  benefits. While 
collecting  maternity  benefits,  she  will  be  released  from  the  obligation  to  pay  social  care 
insurance and retirement contributions (which are paid by the State), but she will have to pay 
sickness insurance contributions. If however after giving birth the person decides to suspend 
her activity for the period of collecting the benefits, she will be released from all of the above 
contributions.  

Pursuant  to  the  Law  of  1990,  the  social  insurance  of  farmers  covers  the  farmers 
themselves as well as members of their household working with them, including their spouse. 
The  social  insurance  for  farmers  includes  insurance  in  case  of  accidents,  sickness  and 
motherhood,  as  well  as  old-age  and  disability  pensions.  For  farmers  (and  members  of  their 
household) operating an agricultural farm of more than 1 hectare, the insurance is obligatory. 
For other farmers or members of their households it is optional.  

According to Article 15 Section 1 and Section 1a of the Law of 20 December 1990 on 
social  insurance  of  farmers,  with  amendments  in  force  since  1  September  2013,  an  insured 
person  (farmer  or  household  member)  is  entitled  to  maternity  benefits.  This  is  on  an 
obligatory basis with regard to the birth of a child and accepting for adoption a child aged up 

398  Ustawa o zmianie niektórych ustaw w związku z określeniem zasad wypłaty emerytur ze środków 

zgromadzonych w otwartych funduszach emerytalnych. Dz. U. 2013 poz.1717 (Law on amendment of certain 
laws with regard to determination of the rules of paying out retirement benefits from means aggregated in open 
retirement funds). JoL 2013 Item 1717. 

399  This results from  Article 26 of the law of 17 December 1998 on retirement benefits and disability allowances 
paid from  ZUS (ustawa z 17 grudnia 1998 r. o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych 
(Dz.U. 1998 Nr 162 poz. 1118)), and from the contend of Article  24 of the Law  of 21  November 2008 r. on 
capitalized  retirement benefits , unified text JoL 2014 Item 1097 (Ustawa z dnia 21 listopada 2008 o  
emeryturach kapitałowych  tj. Dz. U. z 2014 r. poz. 1097), which contains the above mentioned reference to 
Article 26  of the Law on retirement benefits and disability allowances paid from  ZUS. 

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to  seven  years,  and  amounts  to  four  times  the  basic  retirement  benefits  (which  in  2014 
amounted to EUR 200, or PLZ 844).  

However, a self-employed person has no right to childcare leave. With the exception of 
this provision, Polish legislation seems to be compatible with the requirements laid down in 
EU law, although the provisions referring to the rights resulting from social security for some 
categories of workers (in particular farmers) and persons co-operating with them may not be 
covered unambiguously, mostly because they are less protected than self-employed persons.  

6. Goods and services 

The Antidiscrimination Law inter alia implemented the Service Directive, which means that it 
now  guarantees  equal  access  for  women  and  men  to  publicly  offered  goods  and  services, 
including housing and the provision of benefits and electricity. These provisions apply to all 
natural and legal persons, as well as organisational entities, without legal personality, which 
the law confers legal capacity. 

At  the  same  time  it  explicitly  provides  for  several  exclusions  originating  from  various 
equality  directives:  Among  other  things,  it  does  not  apply  to  private  and  family  life  or 
activities  connected  with these  spheres,  or  to the content  of  advertisements  or  the  access to 
educational services. This Law states that it does not apply to differentiated treatment in the 
access to goods and services, based on sex, if the supply of goods and services exclusively or 
primarily  to  members  of  one  sex  constitutes  a  justified  legitimate  goal  and  the  means  of 
achieving this goal prove to be appropriate and necessary. 

7. Enforcement and compliance aspects 

No case law could be identified in relation to victimisation. However, the reversed burden of 
proof  in  discrimination  cases  before  labour  courts  (in  force  since  2001)  has  raised  many 
controversies  in  judicial  decisions.  A  related  provision  of  the  Labour  Code  requires  the 
employer to prove that he/she was guided by considerations other than sex, in decisions such 
as  terminating  the  employment  relationship,  establishing  the  rate  of  pay  or  granting 
promotion. In the event of a breach of the principle of equal treatment the injured party may 
initiate legal proceedings before the courts.  

As a shortcoming in the provisions of the Labour Code concerning the burden of proof, 
the  following  may  be  perceived  (although  there  is  some  room  for  discussion):  it  does  not 
explicitly  require  the  employee,  acting  as  the  claimant,  to  indicate  the  facts  on  the  basis  of 
which  discrimination  may  be  presumed,  but  rather  establishes  an  unconditional  shift  of  the 
burden of proof to the employer. The Supreme Court interprets this rule in accordance with its 
interpretation in EU law. However, there are courts that require the person claiming damages 
with regard to unequal treatment to identify the reason for the particular act of discrimination, 
as well as the circumstances proving unequal treatment because of this reason. The reason for 
such requirement is the proper setting of evidence proceedings and enabling the employer to 
defend him/herself by providing evidence that he/she did not apply the discriminatory criteria 
of which he is accused. Such approach is highly controversial, since neither the Labour Code 
nor EU law provide for the obligation of the employee to submit evidence that the employer’s 
actions  were  guided  by  a  particular  discriminatory  criterion  prohibited  by  law,  especially 
given the fact that this law only provides for an exemplary list of grounds of discrimination. 
Also,  the  argument  is  justly  raised  that  it  is  too  much  to  expect  the  employee  to  know  the 
motivation  of  the  employer’s  alleged  discriminatory  behaviour.  It  therefore  seems  justified 
that  the employee  should only  be  required  to  make  the  case  of  unequal  treatment  probable, 
creating  a  legal  presumption  of  discrimination,  whereas  it  should  be  the  obligation  of  the 
employer to provide evidence to the contrary. With regard to the Antidiscrimination Law, this 
problem  may  also  give  rise  to  concern,  especially  with  regard  to  whether  the  provision 
‘making plausible the fact of the violation’ results in setting a higher standard of proof for the 
claimant  than  that  provided  for  in  the  wording  of  the  EU  law,  which  simply  refers  to 

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‘establishing  of  facts  from  which  it  may  be  presumed  that  there  has  been  direct  or  indirect 
discrimination’. 

security 

courts.  Complaints 

All  disputes  arising  from  employment  relationships  are  decided  by  special  labour  and 
social 
the 
Antidiscrimination Law, are decided by regular civil courts. The access to labour courts used 
to be simple. However, since 2006, this access is no longer free of charge if the amount of the 
claim  is  higher  than  EUR  11 700  (PLN  50 000).  In  such  cases,  similar  to  all  regular  civil 
cases, the court fee amounts to 5 % of the claim. This has resulted in a decline in the number 
of individual claims, which may be a sign that the reduction in the level of judicial protection, 
e.g. against discrimination, is unjustified. 

asserting  discrimination, 

according 

to 

If  the  principle  of  equal  treatment  has  been  violated,  an  employee  has  the  right  to  a 
compensation which is not less than the minimum wage (currently approximately EUR 375). 
An analysis of actual practice that the courts usually properly interpret the legal character and 
function  of  this  compensation,  stating  that  it  is  a  sanction  for  the  mere  act  of  violating  the 
equal  treatment  rule,  and  that  therefore  the  sanction  should  cover  both  material  and  non-
material losses of the employee. The courts properly indicate that the wording ‘compensation 
in the amount of not less than’, without setting an upper limit, allows for differentiation of the 
amount of compensation, depending on the type and severity of the discriminatory behaviour 
of the employer and its consequences. Unfortunately, there are no reliable data as to the level 
of  compensation  awarded  in  cases  of  gender  discrimination.  On  the  basis  of  some  press 
information one may estimate that the average level of compensation in gender discrimination 
cases varies on average from 1 to 5 times the minimum monthly wage, and only tends to be 
higher in exceptional cases (the maximum amount awarded was, approximately EUR 25 000 
(PLN  100 000)).  Compensation  in  the  amounts  usually  awarded  is  not  likely  to  have  a 
dissuasive effect.  

In  addition  to  civil-law  remedies,  the  administrative monitoring  body,  the  State  Labour 
Inspectorate  (Państwowa  Inspekcja  Pracy)  may  also  initiate  proceedings  against  a 
discriminating employer. These proceedings are considered to be effective. In April 2014, the 
Inspectorate  published  the  results  of  its  investigation  into  the  layoffs  of  persons  returning 
from  maternity,  paternity, and  parental leaves  and  the  observance  of  other  employee  rights, 
including  those  related  to  childcare.  This  investigation  covered  581  companies.  The  report 
indicates  among  other  things  that  in  cases  of  violation  of  the  law,  employees  rarely  go  to 
court. Even in cases where the inspectors themselves referred matters to the court, the persons 
concerned often backed out of the proceedings and cases were frequently remitted. Practice 
shows  that  one  often  can  achieve  more  through  direct  contact  between  the  Labour 
Inspectorate and the employer, than by going to court.400 In addition, the Penal Code of 1997 
provides,  for  the  most  serious  and  notorious  cases  of  violations  of  employees’  rights,  for  a 
maximum  penalty  of  up  to  2 years’  imprisonment  (or  a  fine  or  restrictions to  the  convicted 
person’s liberty). The criminal punishment of a deprivation of liberty for up to 3 years may 
also  be  imposed  in  the  most  serious  instances  of  sexual  harassment.  In  2011  the  legal 
measures were supplemented by the criminalisation of stalking. Time will show what role this 
provision  will  play  in  relation  to  fighting  sexual  harassment.  However,  the  practical 
significance  of  penal-law  sanctions in  discrimination  cases  was  minor,  not  least  because  all 
sexual crimes were traditionally prosecuted not ex officio, but at the victim’s request only. In 
2013, the situation changed insofar that currently it is only stalking that is prosecuted only at 
the victim’s request.  

It  also  has  to  be  stressed  that  the  trade  unions  may  play  a  rather  significant  role  in 
proceedings related to a violation of the principle of equal treatment, both in and outside the 
judicial system. In the former case they may initiate proceedings on behalf of employees, take 
part  in  judicial  proceedings  as  a  representative  of  the  employee  or  present  opinions  to  the 
court. The right to initiate proceedings is also granted to some other social organisations, such 

400  See: http://finanse.wp.pl/kat,1013819,title,4-proc-kobiet-zwolnionych-w-ciagu-pol-roku-od-powrotu-z-

macierzynskiego,wid,16495436,wiadomosc.html?ticaid=112bdd, accessed 1 June 2014. 

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as e.g. human rights NGOs, or social associations of disabled persons. However, in practice 
these organisations do not play an important role.  

The role of collective agreements in promoting equal treatment of women and men and 
preventing  gender  discrimination  is  insignificant.  Such  agreements  can  be  concluded  at  the 
level of an individual enterprise or of a part of or the whole branch of an employment sector. 
An  analysis  of  the  collective  labour  agreements  at  enterprise  level  indicated  that  they  very 
seldom  include  regulations  which  are  more  favourable  for  employees  than  the  minimum 
stipulated  in  the  provisions  of  labour  law.  More  often  they  simply  repeat  the  Labour  Code 
provisions  on  equal  treatment.  This  trend  is  coupled  with  an  increased  frequency  of  cases 
where  the  parties  to  collective  labour  agreements  suspend  the  application  of  the  entire 
agreement or a part thereof. 

The  Antidiscrimination  Law  gives  the  task  of  implementing  the  principle  of  equal 
treatment  mainly  to  the  Human  Rights  Defender    who  has  the  following  competencies: 
analysing, monitoring and supporting equal treatment of all persons, conducting independent 
surveys  concerning  discrimination,  elaborating  and  publishing  independent  reports  and 
making  recommendations  on  any  issues  relating  to  discrimination.  The  Human  Rights 
Defender  can  also,  within  certain  limits,  give  assistance  to  individual  victims  of 
discrimination. However, questions may be raised as to the Human Rights Defender’s ability 
to  effectively  exercise  this  mandate,  considering  the  specific  character  of  the  work  and 
competences  of  the  Human  Rights  Defender  and the  fact that the increase in  duties  has  not 
been accompanied by sufficient financial resources for their fulfilment. Therefore the Human 
Rights  Defender  has  determined  her  priorities  with  regard  to  preventing  discrimination, 
among which gender-based discrimination has not been mentioned. 

8. Overall assessment 

The  process  of  the  transposition  of  selected  EU  equality  directives  into  the  Polish  Labour 
Code  was  already  initiated  before  Poland’s  accession  and  it  had  progressive  character:  in 
2001, a new Section called ‘equal treatment of women and men in employment’ was adopted. 
In 2003 this Section was renamed and modified so as to allow the application of its provisions 
also to instances of discrimination based on grounds other than gender. The Law of 2004 on 
the  Promotion  of  Employment  and  Institutions  of  the  Labour  Market  dealing  with 
discrimination  in  the  access  to  hiring  or  job  training  accomplished  the  process  of  the 
transposition  of  equality  directives  in  the  field  of  access  to  work.  In  2006,  2008  and  2013 
further  amendments  to  the  Labour  Code  were  introduced,  revising  the  central  concepts  and 
dealing  mainly  with  the  protection  of  women’s  health  during  pregnancy,  extension  of 
maternity and paternity leaves and also providing for different forms of flexible working time 
arrangements.  In  1998,  the  general  reform  of  the  mandatory  social  security  scheme  took 
place. The Law on Occupational Pension Schemes of 2004 achieved compliance of Poland’s 
legislation  with  relevant  EU  directives  in  this  respect.  In  2011  the  Antidiscrimination  Law 
entered  into  force,  supplementing  provisions  of  the  labour  law  regulating  access  to 
employment  and  vocational  training  and  providing  for  horizontal  protection  in  case  of 
violation of the principle of equal treatment in the access to goods and some services, as well 
as the access to the social security system. As a result of these legislative changes, labour law 
as  well  as  social  security  law  and  the  regulation  of  access  to  goods  and  some  services, 
correspond, in general, with the requirements of the EU gender equality directives. However, 
when it comes to the transposition of particular EU concepts and regulations, despite several 
consecutive  amendments,  legislation  still  shows  some  inadequacies  and  deficiencies. 
Sometimes,  binding  law  provisions  are  overprotective,  e.g.  in  the  prohibition  of  the 
performance  of  certain  activities  by  all  women.  The  provisions  aimed  at  the  protection  of 
parenthood are not treated as individual rights of a particular employee, with regard to his/her 
contributions for  the  social  security  system,  but  are  rather  attached  to the  mother  only.  The 
Ministry of Labour and Social Policy has prepared a draft law aimed to change this situation, 

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but it seems that in the form in which it has been presented it does not sufficiently fulfil the 
requirements of the Directive.401 However, for now the law in force creates a serious barrier 
for effective reconciliation of work and family life on an equal basis for men and women. In 
addition, the actions of the legislator aimed at applying the provisions on equal treatment in 
employment  to  instances  of  discrimination  based  on  reasons  other  than  gender  resulted  in 
some detrimental aspects in the field of protection against discrimination based on gender. For 
example, exceptions to the equal treatment principle provided in the Labour Code no longer 
refer  to  pregnancy,  rather  to  parenthood  only.  In  addition,  questions  may  be  raised  as  to 
whether the equality body’s mandate and resources are adequate for its activities.  

PORTUGAL – Maria do Rosário Palma Ramalho 

1. Implementation of central concepts 

In Portugal, the major principles and main concepts of gender equality are dealt with in the 
Portuguese  Constitution  and  in  the  Labour  Code  (LC).402  The  Constitution  establishes  a 
general principle of non-discrimination on several grounds, including sex, and considers the 
active  promotion  of  equality  between  men  and  women  as  a  fundamental  task  of  the 
Portuguese State.403 As to the Labour Code, it establishes a non-discrimination principle, on 
the grounds of sex and on other grounds, in the field of employment and working relations. 
This principle is developed by the LC in several provisions.404    

The  main  concepts  in  this  area,  such  as  direct  discrimination,  indirect  discrimination, 
positive action, harassment and sexual harassment have been transposed over the years into 
the Portuguese legal system, and have now been integrated in the LC.405 The content of these 
notions is consistent with European law, and in some cases they have a broader scope than in 
European  law.  This  is  true  for  positive  actions,  which  are  explicitly  allowed  by  legislation, 
and  are  considered  as  non-discriminatory  measures,  provided  that  they  are  established  on  a 
temporary basis in order to correct a factual discrimination which already exists.406  

2. Equal pay and equal treatment at work 

2.1. Equal pay  
The Portuguese Constitution establishes the right to equal pay for equal work407 as a general 
principle but the EU-law provisions in this area are dealt with by the LC, which establishes 
the right to equal pay between men and women, for equal work or work of the same value.408 

401  See: http://www.mpips.gov.pl/bip/projekty-aktow-prawnych/projekty-ustaw/ubezpieczenia-spoleczne/ustawy-

o-zmianie-ustawy-o-swiadczeniach-pienieznych-z-ubezpieczenia-spolecznego-w-razie-choroby-i-
macierzynstwa-oraz-niektorych-innych-ustaw-/#akapit7, accessed 13 November 2014.  

402 The Portuguese Constitution dates from 1976, but has been revised on several occasions. There is a new Labour 
Code (LC), which was approved by Law No. 7/2009 of 12 February 2009, and applies to employees of the 
private sector. This Code has transposed Directive 2006/54. In what regards employees in public services, until 
recently equality issues were dealt with in Law No. 59/2008, of 11 September 2008 (general Act dealing with 
employment in public service), with some minor differences from the rules of the LC, since that Law did not 
cover the changes introduced in the LC of 2009. However, just recently, there has been a major change in the 
general legislation applicable to civil servants, and Law No. 59/2008 was replaced by Law No. 35/2014, of 
20 June 2014 (Lei Geral do Trabalho em Funções Públicas), which entered into force on 1 August 2014. 
Under this new Act (Article 4 No. 1 c) and d)), equality issues and maternity and paternity issues regarding 
civil servants, regardless of the nature of the job and the type of employment, are to be governed by the Labour 
Code. Therefore, the legislative system has become simpler. 

403  Portuguese Constitution, Article 13 and Article 9(h).  
404  LC, Articles 23, 24 and 30.  
405  For the concepts of direct and indirect discrimination, and equal work and work of equal value, see Article 23 

of the LC, and for the concept of positive action, Article 27 also of the LC.  

406  Article 27 of the LC.  
407  Portuguese Constitution, Article 59 No. 1 a). 

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The concept of pay for this purpose is laid down in the law, as well as the notions of equal 
work and work of the same value. The concepts of equal work and work of the same value are 
consistent  with  EU  Law.  As  to  the  concept  of  remuneration,  this  is  established  in  a  rather 
unclear way, since apparently it does not rely on the EU-law broad notion of equal pay for the 
purpose of gender equality,409 but on the national concept of remuneration,410 the content of 
which is narrower (in the sense that it does not cover all financial advantages granted to the 
employee under a labour contract). Nevertheless, for the purposes of the equal pay principle, 
the LC explicitly states that this principle applies not only to remuneration but also to other 
financial  benefits  granted  to  the  employee  under  a  labour  contract.411  Therefore,  national 
legislation meets the requirements of EU law, although in an indirect way. 

Differences in pay are allowed, provided they are based on objective criteria, common to 
men  and  women  (e.g.  productivity,  seniority,  the  lack  of  periods  of  absence). Nevertheless, 
despite the formal compliance of these criteria with EU law, indirect discriminatory practices 
cannot be ruled out when considering the criteria related to the lack of periods of absence of 
the  worker,  because  justified  absences  are  also  taken  into  consideration  for  this  purpose 
(except absences for maternity reasons), including absences for care reasons, which are more 
common among women than among men.  
  With  respect  to  another  issue,  national  legislation  on  equal  pay  goes  beyond  the 
requirements of EU rules regarding the sanctions that are applicable to collective agreements 
that do not comply with the equal pay principle. Whenever a collective agreement or internal 
provision of a company restricts a certain type of remuneration to men or to women, the LC 
establishes that these rules are automatically applicable to employees of both sexes, provided 
they perform equal work or work of the same value.412 

2.2. Access to work and working conditions  
The principle of equality in access to work, working conditions, and professional training is 
developed in the LC, both in a general way and specifically as regards gender equality.413 The 
Code  prohibits  discriminatory  practices  against  employees  in  access  to  employment,  to 
promotion and to professional training. Some exceptions to this principle are allowed, on the 
grounds  of  the  nature  of  the  profession  or  of  the  context  of  the  performance  of  the  labour 
contract,  but  only  if  the  different  treatment  is  objectively  justifiable  and  determining. 
Harassment and sexual harassment are also prohibited.414  

In  this  area,  Portuguese  legislation  again  ventures  beyond  EU  law  as  regards 
discriminatory provisions in collective agreements. Whenever a profession or a professional 
category is reserved by the collective agreement either to men or to women, or whenever a 
requirement  to  have  access  to  a  certain  job  or  promotion  is  applicable  only  to  female  or  to 
male candidates, these provisions are to be considered automatically applicable to employees 
of both sexes.  

2.3. Occupational pension schemes  
The Portuguese legislation regarding occupational social security systems is Decree-Law No. 
12/2006 of 20 January 2006 and Decree-Law No. 307/97 of 11 November 1997. The first law 
regulates the trust funds that deal with professional social security schemes. The second one 
has  transposed  Directive  86/378/EEC,  including  the  changes  introduced  by  Directive 
96/97/EC, into national law.  

408  LC, Articles 24 No. 2 b) and 31 No. 2 b).. 
409  Article 157 No. 2 of the TFEU. 
410  LC, Articles 24 No. 2 b) and 31 No. 2 b). 
411  LC, Article 24 No. 2 c). 
412  LC, Article 26 No. 2.  
413  LC, Article 24 and Articles 30, 31, and 32, respectively..  
414  LC, Article 29. 

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Occupational social security systems are intended either to supplement or to replace the 
legal  and  public  statutory  social  security  system.415  Old-age  pensions,  as  well  as  invalidity 
pensions and survival and other family support pensions can integrate these systems.416 

In Portugal, occupational social security schemes are rare, due to the universal scope of 
the  general  public  social  security  system.  Over  the  years  almost  all  specific  social  security 
schemes (some of which cover many benefits and others having a more limited scope) have 
been integrated into the public social security scheme. 

The main area where specific social security subsystems still exist is the financial sector, 
especially  in banking  companies.  Here, the schemes rely  on  collective  agreements  and  may 
differ in  the  nature  of  the  pension  (supplementary  to  the  statutory  pension  or  replacing  this 
pension) as well as in the form of calculating the pension. The variety of situations makes it 
too  difficult  to  describe  them,  but  it  should  be  noted  that  gender  equality  issues  are  not 
addressed in these schemes, as there are no specific safeguards for gender equality. 

However,  in  recent  years  even  in  the  financial  sector  the  future  of  these  occupational 
social security schemes has become uncertain. In fact, most of these schemes were partially 
integrated in the national and statutory social security system in 2011,417 after an agreement 
with the main banks on the transfer of the trust funds, regarding a percentage of the pensions, 
to  the  State,  which  then  assumed  the  direct  responsibility  to  pay  those  pensions.  After  this 
transfer, occupational social security schemes lost their importance and they only survive as 
supplementary social security schemes based on collective agreements. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  LC  provides  protection  during  pregnancy  and  after  giving  birth.  This  protection  is 
granted to both the mother and the father, except in matters physically and directly related to 
the state of pregnancy and giving birth. These rules are supplemented by other legislation.418 
The  main  provisions  regard  two  main  areas:  the  protection  of  women  while  pregnant  and 
during maternity leave; the recognition of several leaves related to maternity and parenthood.  
As  to  the  protection  of  women  during  pregnancy  and  maternity  leave,  the  following 
measures should be mentioned: while pregnant and when breastfeeding, women have the right 
not to perform night work and extra work, as well as to be transferred to a non-dangerous job; 
they have the right to attend medical examinations during pregnancy and, while breastfeeding, 
they  have  the  right  to  reduced  working  time;  the  dismissal  of  these  women  is  presumed 
unlawful  and  must  be  previously  approved  by  a  public  body;  finally,  in  case  of  unfair 
dismissal these women have the right to return to their jobs.419  

As  to  the  leaves  concerning  maternity  and  parenthood  the  situation  is  the  following: 
women  who  have  given  birth  have  the  right  to  a  paid  maternity  leave,  from  120  days  to 
150 days. This can be divided with the father of the child, or it can be directly granted to the 
father if the mother cannot enjoy it (in case of death or illness). With regard to adoption, leave 
is granted under the same conditions of maternity leave, and fathers have their own right to a 
compulsory  paid  paternity  leave  of  10  days,  followed  by  10  more  days  of  non-compulsory 
leave,  following  the  birth  of  the  child.  Both  the  mother  and  the  father  have  the  right  to 
parental leave after maternity leave (3 months on a full-time basis or 12 months on a part-time 
basis) which can be followed by other non-paid parental leaves up to a possible maximum of 
two or three years, to take care of young children. Finally, when returning from leave, both 
the father and the mother have the right to return to their previous jobs, as well as the right to 
work part time for a certain period of time for the purpose of taking care of young children.420  

415  Decree-Law No. 307/97 of 11 November 1997, Article 1. 
416  Decree-Law No. 307/97 of 11 November 1997, Article 4. 
417  Decree-Law No. 127/2011 of 31 December 2011. 
418  LC, Articles 33 et seq., and Decree-Law No. 91/2009 of 9 April, and for public servants Decree-Law 

No. 89/2009 of 9 April.  

419  LC, Articles 46, 47, 58, 59, 62 and 63. 
420  LC, Articles 35, 38, 40, 41, 43, 44, 51, 52 and 53. 

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In this area, national law meets the requirements of the directives, and even goes beyond 
EU  law  as  regards  the  right  to  short  paid  absences  to  attend  medical  examinations  during 
pregnancy,  and  the  right  to  reduced  working  time  when  breastfeeding.  The  most  positive 
aspect of these rules is the fact that the provisions are in general directed at both the father and 
the mother, and this perspective contributes to a more balanced participation of both of them 
in childcare tasks. 

4. Statutory schemes of social security  

In Portugal, most of the social security provisions fall under the scope of Directive 79/7/EEC 
and the situations contemplated by the Directive are covered by the Social Security General 
Law.421  

This Law establishes two social security systems. The first one is the ‘system of social 
citizenship  protection’,  which  integrates  three  subsystems:  the  ‘social  action  subsystem’ 
(intended  to  promote  actions  in  the  social  field),  the  ‘solidarity  subsystem’  (intended  to 
eradicate  poverty  in  situations  that  do  not  fall  under  the  ‘contribution’  system),  and  the 
‘family protection subsystem’ (intended to compensate people for specific family charges).422 
The  second  social  security  system  is  the  ‘contribution  system’,  which  is  intended  to 
compensate  the  social  risks  of  persons  with  a  professional  activity,  and  is  based  on  the 
contributions of employers and employees.423  

This  second  and  more  general  system  integrates  social  protection  related  to  sickness, 
invalidity  and  old-age  pensions,  family  allowances  (in  situations  related  to  maternity, 
paternity  and  adoption),  involuntary  unemployment,  accidents  at  work  and  occupational 
diseases, in the sense of Directive 79/7/EEC.424  

The rights granted by this general legislation are further developed by specific legislation 
and each type of benefit is granted under specific conditions,425 but it should be observed that 
gender  equality  issues  are  not  addressed  in  these  schemes,  and  there  are  no  specific 
safeguards for gender equality. 

The  main  reason  for  excluding  people  from  receiving  social  benefits,  under  the 
contribution  system,  is  employment  for  an  insufficient  period  of  time,  since  almost  all 
benefits depend on a minimum period of paid work with registered contributions to the social 
security system. This minimum period differs for each type of benefit, but it is the same for 
men and women. On the other hand, leave periods related to maternity and paternity are taken 
into  account  as  working  time,  so  that  social  security  benefits  cannot  be  excluded  for  a 
minimum contribution time on that account. 

Finally, it should be noted that, in the context of the recent financial crisis in Portugal, the 
value of public pensions and other allowances under the statutory social security system has 
decreased considerably in the past few years, while the conditions to access public allowances 
(related to health, maternity and paternity, unemployment, poverty or other social risks) have 

421  Law No. 4/2007 of 16 January 2007. 
422  Law No. 4/2007, Article 6 et seq. (the citizenship system – ‘sistema de protecção social de cidadania’); Article 
29  et  seq.  (the  social  action  system  –  ‘subsistema  de  acção  social’);  Article  41  (solidarity  social  system  – 
‘sistema de solidariedade social’); Article 44 et seq. (the family protection system – ‘sistema de protecção da 
família’). 

423  Law No. 4/2007, Article 50 et seq. (‘sistema previdencial’). 
424  Law No. 4/2007, Article 52. 
425  Old-age and invalidity pensions for dependent workers – Decree-Law No. 187/2007 of 10 May 2007; Old age 
and invalidity pensions for independent workers – Decree-Law No. 328/93 of 25 September 1993, with the 
changes introduced by Decree-Law No. 240/96 of 14 December 1996 and by Decree-Law No. 397/99 of 
13 October 1999; Sickness allowance – Decree-Law No. 28/2004 of 4 February 2004, as amended by Decree-
Law No. 146/2005 of 26 August 2005, and by Decree-Law No. 302/2009 of 22 October 2009; Accidents at 
work and occupational diseases – LC, Articles 281 et seq. and Law No. 98/2009 of 4 September 2009; Family 
allowances, related to maternity, paternity and adoption – Decree-Law No. 91/2009 of 9 April and, for the 
public sector, Decree-Law No. 89/2009 of 9 April; Unemployment – Decree-Law No. 220/2006 of 
3 November 2006, as amended by Decree-Law No. 70/2010 of 16 June 2010 and by Decree-Law No. 64/2012 
of 15 March 2012. 

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become stricter, and both the amount and the duration legally established for these allowances 
have been consistently reduced. 

This development affects women  more strongly than men, since the average amount of 

their pensions tends to be lower than the average amount of men’s pensions. 

5. Self-employed persons  

The impact of Directive 86/613/EEC in Portugal has not been very significant, in the sense 
that  gender  equality  in  the  area  of  independent  work  is  not  considered  an  important  issue, 
contrary  to  what  happens  in  the  area  of  dependent  work.  The  secondary  importance  of  this 
issue is in contrast to the growing importance of the self-employment of women, not so much 
in traditional areas like agriculture but especially in the area of goods and services.  

As  regards  Directive  2010/41/EC,  this  Directive  has  not  been  formally  transposed  into 
Portuguese legislation, since the authorities consider that national provisions already comply 
with the Directive.  

Despite  the  limited  effects  of  theses  directives  in  national  legislation,  Directive 
2010/41/EC  has  been  important  in  Portugal  concerning  specific  issues:  economically 
dependent  workers,  maternity  and  paternity  provisions  and  helping  spouses  in  the  area  of 
social security. 
  Workers who are formally independent, in the sense that they do not have an employment  
contract but still economically depend on an employer, are covered by the LC rules on non-
discrimination in general, gender equality and maternity and paternity.426 
  Maternity provisions regarding dependent workers are partially extended to independent 
workers who have access to public allowances in the case of maternity, paternity or adoption, 
on  the  same  conditions  as  dependent  workers.427  However,  in  situations  related  to  family 
duties or sickness, these workers are not protected, at least not by the general social security 
schemes,  regardless  of  the  fact  that  these  situations  may  be  connected  to  maternity  and 
paternity. 

In  the  social  security  area,  helping  spouses  are  covered  by  the  legal  social  security 
scheme  of  independent  workers.428  There  are  also  specific  provisions  concerning  assisting 
spouses in the area of agriculture.429  

Law No. 3/2011 of 15 February 2011 transposed Directives 2000/43/EC, 2000/78/EC and 
2006/54/EC in what regards non-discrimination in independent work and procedural rights of 
private  or  public  organisations  to  assist  victims  of  discrimination.  This  Law,  which  is 
applicable both in the private sector and in the public sector, establishes a broad concept of 
independent work, considering as such all professional activity that is not performed under an 
employment contract or in an equivalent situation.  

Non-discrimination  in  this  area  is  directly  related  to  equal  opportunities  that  must  be 
granted in the access to independent work, in professional training, and in the conditions in 
which  the  work  is  performed.  Any  act  that  favours  or  causes  damage  to  these  workers, 
performed  by  the  beneficiary  of  the  work  and  based  on  any  discriminatory  factor,  is 
prohibited,  including  direct  and  indirect  discriminatory  practices  and  harassment  practices. 
These  principles  are  compatible  with  specific  legal  rules  concerning  protection  against 
discrimination of  foreigners,  which fall  under the scope  of  Directive  96/71/CE. In  addition, 
the  principles  are  also  compatible  with  the  rules  concerning  the  protection  of  pregnancy, 
maternity  and  paternity,  adoption  and  other  situations  related  to  the  reconciliation  of 
professional and family life. 

426  LC, Article 10. 
427  Decree-Law No. 328/93 of 25 September 1993, Article 53 No. 1 and Decree-Law No. 91/2009 of 9 April 

2009, Article 4 No. 1. 

428  Decree-Law No. 328/93 of 25 September 1993, with the changes introduced by Decree-Law No. 240/96 of 

14 December 1996. Article 6 No. 1(c). 
429  Decree-Law No. 159/2001, of 18 May 2001. 

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A significant point to be noted is the growing involvement of the Government as regards 
gender equality in decision making, especially as regards the presence of women in company 
boards. In this area, the Government approved a Resolution in 2012430 designed to promote 
the  increased  participation  of  women  on  the  boards  of  public  and  privates  companies  and, 
following  this  resolution,  other  legislative  measures  have  been  established:  for  instance,  as 
regards public companies, Decree-Law No. 133/2013, of 3 October 2013 (which establishes 
the  general  features  of  public  companies),  establishes  that  the  governance  boards  of  public 
companies  (administration  board  and  surveillance  board)  must  aim  to  have  both  men  and 
women  as  members,  and  establishes  the  obligation  of  public  companies  to  put  in  place 
equality  plans431;  and  Law  No.  67/2013,  of  28  August  2013  (which  establishes  the  general 
features of administrative independent agencies for the monitoring of economic activity both 
in  the  private  and  in  the  public  sector),  establishes  that  the  board  of  these  agencies  must 
include at least 33 % of the members of each sex, and that the presidency of this board must 
be alternately occupied by men and women.432  

6. Goods and services  

Directive 2004/113/EC has been transposed into national legislation by Law No. 14/2008 of 
12 March 2008. This legislation is in accordance with the Directive concerning the notions of 
discrimination (direct and indirect), harassment and sexual harassment, the scope of the Law, 
which  applies  to  both  the  private  and  the  public  sector,  and  the  rules  regarding  the 
enforcement and monitoring of the Law.433 

This legislation goes beyond the requirements of the Directive in the following respects: 
discriminatory  practices  in  contractual  practices  are  forbidden;  the  rules  imposed  by  the 
Directive on actuarial factors are generally applicable to all contracts and not only to contracts 
concluded after December 2007 (except in insurance contracts related to maternity); finally, 
the Law includes a system of sanctions to ensure its practical implementation.434  

7. Enforcement and compliance aspects 

Concerning enforcement, the following points are to be noted: 

The provisions on the burden of proof have been transposed into national legislation by 
the LC, which applies the rule of the reversal of the burden of proof to all actions regarding 
discriminatory practices (gender included), with the exception of actions based on harassment 
practices.435 

The law establishes both civil and administrative sanctions (civil damage compensation 
and administrative fines) to respond to discriminatory practices, and it also establishes direct 
sanctions  applicable 
to  collective  agreements,  such  as  automatic  replacement  of 
discriminatory clauses by neutral clauses.436 The standard of these measures is adequate. 

The  access  to  the  courts  for  alleged  victims  of  discrimination  is  safeguarded  and  they 
have  the  right  to  seek  counsel  as  well  as  to  report  discriminatory  practices  to  the  legal 
authorities (the ACT – Labour Inspection Service, and the CITE – Commission for Equality 
in Employment, a public body that deals with gender equality issues specifically in the area of 
work  and  employment).437  Also,  the  law  establishes  the  rights  and  competences  of  other 

430  Council of Ministers’ Resolution No. 19/2012, of 8 March 2012. 
431  Article 31 No. 6 and Article 50 No. 2.  
432  Article 17 No. 8. 
433  Law No. 14/2008 of 12 March 2008, Articles 2, 3, 8, 9 and 11. 
434  Law No. 14/2008 of 12 March 2008, Articles 4, 6, 10, 17, 12 and 13. 
435  LC, Article 25 No. 5 and No. 6.  
436  LC, Articles 28 and 26. 
437  ACT – Autoridade para as Condições de Trabalho and CITE – Comissão para a Igualdade no Trabalho e no 

Emprego. 

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private  and  public  organisations  to  assist  victims  of  discrimination,  including  the  right  to 
intervene in judicial procedures.438 

Social  partners  can  play  a  role  in  the  enforcement  of  gender  equality  law,  since 
provisions concerning labour law are discussed with them. However, gender equality does not 
seem to be considered an important subject at this level.  

The LC establishes that collective agreements should implement the necessary measures 
to  enforce  equality.439  However,  this  rule  is  not  mandatory  and  equality  issues  are  not  an 
important issue in collective bargaining. This situation could change if the issue were to be 
considered  as  a  mandatory  content  of  collective  agreements,  since  these  agreements  are 
binding and are usually declared to be generally applicable. The LC also establishes a system 
of assessment of the content of collective agreements by the CITE, performed during the first 
30  days  after  the  publication  of  these  agreements  and  designed  to  check  them  for  possible 
discriminatory clauses and promote elimination of such clauses by the court.440  

8. Overall assessment  

Portuguese  legislation  formally  complies  with  EU  law,  although  exceptions  are  apparent 
concerning  some  particular  points,  such  as  the  concept  of  remuneration,  the  burden  of  the 
proof  rule  in  harassment  situations  and  the  extent  of  social  protection  regarding  some 
professional categories. However, when one looks beyond the legal framework, the material 
weaknesses of the system are easily apparent, especially on four points. 

Firstly, although the law establishes many protective measures, the State does not finance 
them where needed, and therefore some of these measures do not work in practice (this is true 
for  some  of  the  maternity  and  paternity  measures).  Secondly,  there  is  no  practical 
implementation of the legal measures by collective agreements, with or without the assistance 
of the State. Thirdly, there is no relevant case law regarding gender equality to describe, since 
in  Portugal  hardly  any  cases  have  been  decided  in  this  area.  And  finally,  a  recent  survey 
conducted by the CITE in relation to pay shows that the pay gap between men and women is 
still  significant  (around  18.5 %)441,  which  leads  to  the  conclusion  that  even  in  such  a 
traditional issue as equal pay there is still a lot to be done.  

This situation indicates a lack of practical implementation of the legal provisions in this 

area. The system exists in law, but its practical effectiveness is weak. 

Finally,  the  author  wishes  to  emphasise  the  negative  impact  of  the  financial  and 
economic situation of Portugal with respect to the level of protection granted by legislation in 
the area of equality. The impact of this situation is enormous and seems to become structural.  

ROMANIA – Iustina Ionescu 

1. Implementation of central concepts 

The Romanian Constitution of 1991 included the principle of non-discrimination and equality 
before the law, ‘sex’ being one of the ten protected grounds expressly recognised in the text 
of the Constitution.442 Specifically regarding gender equality, there are only two provisions in 
the Constitution, having a limited scope. First, the principle of equal pay for equal work does 

438  Law No. 3/2011 of 15 February, Articles 1 and 8. 
439  LC, Article 492 No. 2 d). 
440  LC, Article 479. 
441 The results of this survey were disclosed by Council of Ministers’ Resolution No. 18/2014, of 7 March 2014, 

which accordingly approved some measures intended to reduce the pay gap.  

442  Romanian Constitution of 1991, Articles 4 and 16. 

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not  cover  work  of  equal  value  and  other  payments  except  salary.443  Second,  the  State 
guarantees equal opportunities for women and men to access public offices.444  

Not  until  the  early  2000s  was  anti-discrimination  legislation  introduced,  as  a  result  of 
pressure from civil society. Once again, gender discrimination and discrimination against all 
other  groups  protected  by  law  have  been  dealt  with  separately.  In  2000,  the  Government 
adopted  a  multi-ground  general  anti-discrimination  statute  which  covered  discrimination  on 
the  ground  of  sex,  as  part  of  an  open-ended  list  of  grounds  of  discrimination  (hereafter 
‘Antidiscrimination  Law’);  an  equality  body  was  established  to  deal  with  administrative 
complaints  on  all  grounds  of  discrimination  (Consiliul  National  pentru  Combaterea 
Discriminarii:  the  National  Council for  Combating  Discrimination  (hereafter  CNCD)). Two 
years  later,  Parliament  adopted  a  special  law  dealing  exclusively  with  gender  equality:  the 
Law  on  equal  opportunities  between  women  and  men  (hereafter  ‘Gender  Equality  Law’);  a 
second equality body was established to deal only with public policies on gender equality in 
the field of employment (Agentia Nationala pentru Egalitate de Sanse intre Femei si Barbati, 
ANES, closed down in 2010).  

Although  having  a  separate  legal  framework  addressing  gender  equality  had  positive 
effects because special attention was given to gender equality, actual practice showed a series 
of  downsides  to  this  legislative  approach.  In  practice,  the  political  and  administrative 
commitment  to  gender  equality  is  limited  to  the  field  of  employment.  ANES  was  not 
independent,  being  placed  under  the  Ministry  of  Labour.  The  two  laws  evolved  separately, 
having been amended several times in the past ten years. This has resulted in overlap in the 
various provisions and in differences in the legal protection available to persons exposed to 
sex discrimination, compared to all other groups exposed to discrimination. In this legal maze, 
one must keep in mind that the special law (Gender Equality Law) overrides the general law 
(Antidiscrimination  Law);  the  latter  only  applies  when  the  former  is  silent  on  a  particular 
issue.  

At  the  moment,  the  main  concepts  in  the  field  of  gender  equality  have  been  fully 
transposed into the Gender Equality Law. The concept of direct discrimination is understood 
as the less favourable treatment of a person based on sex compared to how another person is, 
has  been  or  would  be  treated  in  a  comparable  situation.445  Indirect  discrimination  is  an 
apparently  neutral  provision,  criterion  or  practice  that  would  put  persons  of  one  sex  at  a 
particular disadvantage compared to persons of the other sex, unless that provision, criterion 
or practice is objectively justified by a legitimate aim, and the means of achieving that aim are 
appropriate  and  necessary.446  Positive  action  is  permitted,  not  required.447  There  are  two 
different provisions in the Gender Equality Law regarding positive action. On the one hand, it 
covers  special  actions  that  are  adopted  on  a  temporary  basis  in  order  to  accelerate  the 
realisation in practice of equal opportunities between women and men.448 On the other hand, it 
is  aimed  at  protecting  certain  categories  of  women  or  men,  and  not  women  as  a  group  in 
comparison with men.449 The concept of instruction to discriminate is understood as any order 
or provision to discriminate.450 Harassment is defined as any unwanted conduct related to the 
sex of a person, having the purpose or effect of affecting the dignity of the respective person 
and  creating  an  intimidating,  hostile,  humiliating  and  offensive  environment.451  Sexual 
harassment  is  sanctioned  by  two  distinct  laws.  The  Gender  Equality  Law  sanctions  any 
unwanted behaviour having a sexual nature, manifested physically, verbally or non-verbally, 

443  Romanian Constitution of 1991, Article 38(4). 
444  Romanian Constitution amended in 2003, Article 16(3). 
445  Law 202/2002 regarding equal opportunities and equal treatment between women and men (Lege nr.202/2002 
privind egalitatea de sanse si de tratament intre femei si barbati), Article 4(a) (hereafter ‘Gender Equality 
Law’). 

446  Gender Equality Law, Article 4(b). 
447  Gender Equality Law, Article 4(e) and Article 5(b). 
448  Gender Equality Law, Article 4(e). 
449  Gender Equality Law, Article 5(b). 
450  Gender Equality Law, Article 6(2). 
451  Gender Equality Law, Article 4(c). 

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having the purpose or effect of affecting the dignity of the respective person and, especially, 
creating  an  intimidating,  hostile,  degrading,  humiliating  or  offensive  environment.452  The 
New  Criminal  Code,  which  entered  into  force  on  1  February  2014,  sanctions  acts  of 
repeatedly  demanding  sexual  favours  in a  labour relation  or a  similar  relation, if  the  victim 
was intimidated or placed in a humiliating situation.453 While expanding the personal scope of 
the criminal offence of sexual harassment to labour relations between colleagues, irrespective 
of hierarchical relations, this new definition no longer applies outside the framework of labour 
relations  (for  example,  sexual  harassment  by  a  teacher  or  a  doctor  against  a  student  or  a 
patient no longer falls under the criminal offence of sexual harassment454).  

The only case law available is from the CNCD, imposing sanctions for sexual harassment 
in cases where a colleague or supervisor was displaying obscene gestures or gestures having a 
sexual  nature,  watching  adult  movies  at  the  workplace,  threatening  the  victim  for  them  to 
respond  to  sexual  advances.455  Sexual  harassment  was  also  involved  in  a  case  where  an 
intimidating,  humiliating  and  hostile  environment  was  created  in  the  office  by  a  supervisor 
who  was  making  indecent  comments  about  the  victim’s  looks,  including  sexual  innuendo, 
lascivious eyes, studying certain parts of her body, blatant references to acts or sexual organs 
and a contemptuous attitude that continued throughout the day, and occasional warnings that 
as her supervisor he may put her on the list of persons that will be let go.456  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The Romanian Constitution is limitative regarding equal pay. It does not cover work of equal 
value,  only  equal  work,  and  it  only  applies  to  salary,  not  other  types  of  remuneration  or 
benefits  for  work.457  There is  no  case law  of the  Constitutional  Court  explaining  how  these 
limitations should be interpreted. 

Despite the Constitutional provisions, the Labour Code fully transposes the principle of 
equal  pay.  It  applies  to  equal  work  and  work  of  equal  value  and  to  ‘all  the  elements  and 
conditions  of  remuneration.’458  Similar  provisions  are  stipulated  in  the  Antidiscrimination 
Law459 and the Gender Equality Law.460 The scope of the notion of ‘pay’, as stipulated by the 
Labour  Code,  includes  the  salary,  any  other  remuneration  or  benefits,  bonuses  and  other 
supplements.461  The  payment  in  kind  of  a  part  of  the  salary  is  allowed  only  if  it  has  been 
expressly  provided  for  in  the  applicable  collective  labour  agreement  or  in  the  individual 
employment contract.462  

There  are  wage  schemes  approved  by  law  only  for  the  public  service.  For  all  other 
employees,  salary  is  negotiated  on  an  individual  basis.  Minimum  wage  levels  may  be 
established  by  collective  labour  agreements.  Nevertheless,  there  is  no  legal  obligation  for 
employers to conclude such agreements, only to initiate negotiations if they have more than 
21 employees.463 Since 2011, no general collective agreement has been in force at the national 
level.  Salary  details  are  confidential  and  it  is  difficult  to  find  out  what  amounts  are  paid  to 

452  Gender Equality Law, Article 4(d). 
453  New Criminal Code, Article 223. 
454  Old Criminal Code, Article 203¹. 
455  CNCD, Decision No. 180 of 19 July 2010. 
456  CNCD, Decision No. 382 of 18 October 2012. 
457  Romanian Constitution, Article 41(4). 
458  Labour Code, Article 6(3). 
459  Government Ordinance 137/2000 regarding preventing and sanctioning all forms of discrimination (Ordonanta 
Guvernului nr.137/2000 privind prevenirea si sanctionarea tuturor formelor de discriminare), Article 6(b), (c) 
(hereafter ‘Antidiscrimination Law’). 

460  Gender Equality Law, Article 7(c). 
461  Labour Code, Article 160. 
462  Labour Code, Article 166. 
463  Labour Code, Article 229. 

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male  colleagues.464  In  very  few  cases,  trade  unions  or  representatives  of  the  employees  are 
entitled  to  access  information  about  wages.465  As  a  result,  despite  the  legal  definition  of 
discrimination also allowing a hypothetical comparator,466 in its case law regarding equal pay, 
the  National  Council  for  Combating  Discrimination  requires  the  parties  to  submit  evidence 
regarding  a  real  comparator.467  Moreover,  there  are  no  job  classification  schemes,  so  it  is 
difficult to compare jobs and positions involving work of equal value.  

2.2. Access to work and working conditions 
The  Labour  Code  guarantees  equal treatment  on the ground  of  sex  for  all  employees  on  an 
employment contract. In December 2012, the Gender Equality Law expanded its scope to all 
workers, including self-employed persons and spouses of self-employed persons who are not 
employees or associates, in cases where they contribute on a regular basis to the work carried 
out by the self-employed person.468  

The  Gender  Equality  Law  details  the  scope  of  equal  opportunities  and  equal  treatment 
between women and men in the field of employment. It covers non-discriminatory access and 
performance  of  a  profession  or  occupation,  access  to  employment  in  all job  openings  at  all 
levels,  equal  income  for  work  of  equal  value,  non-discriminatory  access  to  vocational 
guidance, vocational training, advanced vocational training and retraining, including practical 
work  experience.  It  also  covers  promotion,  employment  and  working  conditions  in 
compliance with health and safety safeguards at the workplace, benefits other than the salary, 
as  well  as  non-discriminatory  access  to  public  and  private  social  security  systems,  non-
discriminatory access to organisations of workers, employers or professionals, including the 
benefits provided for by such organisation, non-discriminatory access to social services and 
social benefits provided for by the law.469 

A  landmark  case  decided by  the  CNCD  in  2012  addressed the issue  of  equal access  to 
specialised training leading to employment in police for women and men. The women’s rights 
NGO Equality Partnership Centre filed a complaint stating that police schools allocated places 
based on sex and that much fewer places were allocated to women compared to men. CNCD 
found  this  policy  to  be  discriminatory  against  women.  It  ruled  that  it  is  the  candidate  who 
should decide for herself/himself whether to take the risks implied in a job in the police force, 
while the employer has the means to assess the performance of each candidate corresponding 
to the activity that she/he will carry out.470  

As  to  exceptions  to  the  legal  protection  of  gender  equality,  the  Gender  Equality  Law 
transposed  the  exception  in  the  Recast  Directive  regarding  genuine  and  determining 
occupational requirements applied in the access to employment including training leading to 
such  employment.471  However,  the  Romanian  legislator  expanded  this  exception  to  ‘any 
difference  of  treatment  based  on  a  characteristic  related  to  sex’.472  For  example,  working 
conditions  or  dismissal  could  fall  under  ‘any  treatment’,  which  goes  beyond  the 
understanding of the Recast Directive.473 Not having case law available on this issue makes it 
difficult to predict how this will work out in practice.  

In  2013,  the  Piteşti  Court  of  Appeal  upheld  the  CNCD  decision  sanctioning  for 
harassment a local police chief who made discriminatory remarks during a press conference 
regarding  women  in  police  forces  and  expressed  his  opinion  that  the  number  of  women  in 

464  Labour Code, Articles 162-163. 
465  Labour Code, Article 163. 
466  Gender Equality Law, Article 4 Point a and Antidiscrimination Law, Article 2(1). 
467  E-mail correspondence with a member of the Steering Committee of the National Council for Combating 

Discrimination. See also Decisions Nos. 75 of 19 February 2013, 393 of 12 June 2013 and 564 of 12 December 
2012 (on file with the National Expert). 

468  Gender Equality Law, Article 7(2). 
469  Gender Equality Law, Article 7. 
470  CNCD, Decision No. 485 of 12 October 2012. 
471  Gender Equality Law, Article 9. 
472  Gender Equality Law, Article 6(c). 
473  Recast Directive, Article 14(2). 

214  

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police forces should be limited.474 In this case the Court did not consider ‘sex’ to be a general 
determining occupational requirement for police forces.475 

There are other exceptions prescribed by the Gender Equality Law that limit the scope of 
the  legal  gender  equality  protection  –  they  apply  to  all  activities  carried  out  within  the 
religious denominations and in private life.476 In these spheres, the exceptions are no longer 
limited 
to  genuine  and  determining  occupational  requirements,  objectiveness  and 
proportionality, falling foul of the European acquis. Interestingly, these broad exceptions only 
apply to gender – there are no similar provisions in the Antidiscrimination Law. 

2.3. Occupational pension schemes 
From the beginning of 2008, the pension system in Romania consists of three pillars. The first 
pillar  is  the  universal  social  security  fund,  a  ‘pay  as  you  go’  type,  which  is  mandatory  for 
persons in an employment relationship or self-employed persons. It uses the majority of the 
contribution to social insurance paid by the employer and the employee. The second pillar is a 
mandatory  and  fully-funded  pension  fund  with  defined  contributions  which  are  allotted  to 
individual  accounts  run  by  licensed  pension  insurance  companies.  The  third  pillar  includes 
supplementary  pension  schemes  on  a  voluntary  basis.  Both  the  law  regulating  the  social 
security  system477  and  the law  regulating  voluntary  supplementary  pension  schemes  include 
general  non-discriminatory  clauses.478  Moreover,  the  Gender  Equality  Law  prescribes  equal 
access for women and men to social security systems, public or private.479 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Romanian  legislation  in  the  field  of  pregnancy  and  maternity  protection  and  parental  leave 
exceeds  the  requirements  of  EU  law.  Maternity  leave  lasts  for  126  days,  63  days  being 
allocated  before  birth  and  63  days  after  birth,  with  a  mandatory  minimum  of  42  days  after 
birth. Parental leave of one year or two years (three years for a child with disabilities) may be 
taken after maternity leave, by all workers, women and men equally, who are parents and had 
a  taxable  income  in  the  last  12  months.  Starting  1  March  2012,  at  least  one  month  of  the 
parental  leave  is  allocated  on  a  non-transferable  basis  to  the  second  parent.480  The  right  to 
parental leave is granted both to biological and adoptive parents. 

In 2010, parental leave legislation was reformed. The previous allowance of 85 % of the 
income  was  capped  at  different  levels  depending  on  the  length  of  the  parental  leave.  For 
parental  leave  lasting  one  year  the  allowance  may  range  between  approximately  EUR  112 
(RON  500)  and  EUR  761  (RON  3  400),  whilst  for  parental  leave  lasting  two  years  the 
allowance is lower; between approximately EUR 112 (RON 500) and EUR 268 (RON 1 200). 
This measure, along with the one providing a small monthly incentive (EUR 112 (500 RON)) 
until  the  child  reaches  the  age  of  two,  are  measures  aimed  to  encourage  parents,  especially 
women, to return to work earlier.481 However, these legislative measures are not supported by 
practical measures creating the necessary conditions for parents to return to work earlier, such 
as ensuring enough places in affordable nurseries and kindergartens, and creating facilities for 
employers  that  are  willing  to  take  measures  to  balance  work  and  family  life.  This  situation 
disproportionately  affects  women  because  they  more  frequently  take  parental  leave. 

474  CNCD, Decision No.412 of 17 October 2011. 
475  Piteşti Court of Appeal, Civil Judgment No.48 of 8 February 2013. 
476  Gender Equality Law, Article 3. 
477  Law 263/2010 regarding the unified public pensions system (Lege nr.263/2010 privind sistemul unitar de 

pensii publice), Article 2(d). 

478  Law 411/2004 regarding pension funds managed by private entities (Legea nr.411/2004 privind fondurile de 

pensii administrate privat), Article 6(5) (hereafter ‘Public Pensions Law’). 

479  Gender Equality Law, Article 7(g) and Article 9(e). 
480  Government Emergency Ordinance No. 111/2010 regarding leave and monthly allowance for parental leave 
(Ordonanta de Urgenta a Guvernului nr.111/2010 privind concediul si indemnizatia lunara pentru cresterea 
copiilor), Article 11 (hereafter ‘Parental Leave Law’). 

481  Parental Leave Law. 

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According to the statistics published by the Ministry of Labour, Family, Social Protection and 
the Protection of the Elderly, the percentage of men taking parental leave is only around 15-
18 %, and it is more widespread in the rural area compared to the urban area.482 

As  to  paternal  leave,  according  to  the  law,  fathers  who  contribute  to  social  security 
insurance have the right to a five-day fully-paid leave, in the first two months after the birth of 
their  child.  The  leave  may  be  extended  to  15  working  days  if  the  father  has  completed  an 
infant care course.483 This right does not apply to adoption.  

Romanian legislation also respects the standards regarding the risks regarding health and 
safety,  and  any  possible  effects  on  pregnancy  or  breastfeeding,  including  those  relating  to 
assessment,  exposure,  night  work,  ante-natal  exams,  and  maternity  risk  leave  (up  to  120 
days).484 

Employers are not allowed to dismiss pregnant workers, workers who are on maternity 
risk  leave,  maternity  leave  or  parental  leave.  A  similar  protection  against  any  type  of 
dismissal  is  ensured  for  a  period  of  six  months  after  the  end  of  parental  leave.485  The  only 
exception  is  when  the  employer  is  closing  down  or  is  under  judicial  reorganisation.  After 
maternity leave or parental leave, the worker who has been on leave has the right to return to 
his/her job or to an equivalent one and also has the right to benefit from all advantages having 
occurred during his/her leave.  

Unlawful  dismissal  may  be  challenged  before  a  labour  court  within  30  days  from  the 
notice of dismissal. The burden of proof is on the employer. Court procedures are long and 
exhausting.  The  CNCD  has  developed  substantial  case  law  sanctioning  employers  for 
harassment  and  unlawful  dismissal  of  women  on  the ground  of  pregnancy.486  However,  the 
Bucharest Court of Appeal has overturned recent decisions of the CNCD in this field.487 Even 
though these three judgments are not final, they reflect the formalistic view that some judges 
have with respect to the competence of the CNCD in the field of sanctioning discriminatory 
treatment  related  to  pregnancy  in  employment  relations.  At  the  same  time,  this  strict 
interpretation has led courts to apply a strict definition of discrimination on the ground of sex. 
In particular, it found that the ground ‘sex’ was not applicable because there was no evidence 
that the employees were treated that way because they were women. 

4. Statutory schemes of social security 

The  law  regulating  the  social  security  system  includes  a  general  non-discriminatory  clause, 
where one of the protected grounds is sex.488 There are several types of pensions: the old-age 
pension, anticipated pension, partially anticipated pension, invalidity pension, and survivors’ 
pension. Moreover, persons insured under the public system have the right to paid support in 
case  of  death.  As  to  sickness,  accidents  at  work  and  occupational  diseases  schemes  and 
associated benefits, the law provides for medical leave and public health insurances to insured 
persons. Only contributors to the social security system have access to these benefits.  

The newly adopted Public Pensions Law (Law No. 263/2010) maintains the difference in 
the  pensionable  age  for  men  (65)  and  women  (63),  despite  a  Constitutional  Court  decision 
stating that equalising the pensionable age is constitutional. The initial draft introduced by the 
Government  proposed  equalising  the  pensionable  age  for  men  and  women  at  65.  In  its 
reasoning,  the  Constitutional  Court  acknowledged  that  the  social  conditions  for  women  in 

482  MLFSPE, Statistical Bulletin. Social Assistance. 2010, 2011, 2012, 2013, available at 

http://www.mmuncii.ro/j33/index.php/ro/transparenta/statistici/buletin-statistic, accessed 4 September 2014.   

483  Law 210/1999 regarding paternal leave (Legea 210/1999 privind concediul paternal). 
484  Government Emergency Ordinance No. 96/2003 regarding the protection of maternity at the workplace 
(Ordonanta de Urgenta a Guvernului nr.96/2003 privind protectia maternitatii la locurile de munca). 

485  Parental Leave Law, Article 24. 
486  CNCD, Decision No. 417 of 15 December 2010, Decision No. 28 of 18 January 2012, and Decision No. 61 of 

6 February 2013. 

487  Bucharest Court of Appeal, Judgments Nos 3918 of 9 December 2013, 1712 of 27 May 2013, and 4585 of 24 

July 2012. 

488  Public Pensions Law, Article 2(d). 

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Romania  had  improved  in  recent  years,  similar  to  other  European  States.  In  the  Court’s 
opinion, this change shows there is no longer a justification for the different treatment based 
on  sex  that  is  thought  to  be  more  favourable  for  women.489  The  political  decision  was  to 
maintain  the  difference  in  the  pensionable  age,  with  the  exception  of  military  personnel, 
police forces, penitentiary public officers and other public officers from the public order and 
national  security.490  A  complaint  submitted  to  the  CNCD  in  2009,  by  a  school  teacher 
complaining  that  women  are  obliged  to  retire  five  years  earlier  than  men,  was  declared 
inadmissible  because  the  CNCD  is  not  competent  to  examine  discrimination  included  in 
law.491  
  Women  are  actually  disadvantaged  by  the  difference  in  pensionable  age,  as  clearly 
showed by statistics. Another different treatment contributing to their disadvantaged situation 
is  that  during  parental  leave,  predominantly  taken  by  women,  the  points  assigned  for  their 
contribution to the  social  security  fund do  not reflect  their  actual  income  (only 25 %  of  the 
medium  income  at  the  national  level  registered  during  leave,  irrespective  of  the  person’s 
actual income).492 In addition, the Public Pensions Law introduced an equalised requirement 
regarding  the  period  of  contribution  to  the  social  security  fund  (35  years  for  both  men  and 
women), which will downgrade women’s pensions even more in comparison with men.493 

5. Self-employed persons 

In  Romanian  legislation  the  establishment,  equipment  or  extension  of  a  business  or  the 
launching  or  extension  of  any  other  form  of  self-employed  activity,  including  financial 
facilities,  is  in  compliance  with  the  principle  of  gender  equality.  The  conditions  for  the 
formation  of  a  company  by  spouses  are  not  more  restrictive  than  the  conditions  for  the 
formation of a company by unmarried persons. Several projects implemented with European 
structural  funds  supported  activities  aimed  at  encouraging  entrepreneurial  initiatives  among 
women.  

Recent amendments of the Gender Equality Law explicitly extended its scope to apply to 
self-employed persons and their spouses who work for them.494 Nevertheless, this is the only 
law that operates with the concept of ‘assisting spouse’; this type of work is unregulated in 
Romania.  Therefore,  it  will  be  difficult  to  establish  that  a  person  is  actually  an  assisting 
spouse. Moreover, there are no benefits granted to assisting spouses that do not have a taxable 
income. 

6. Goods and services 

As mentioned above, the Antidiscrimination Law and the Gender Equality Law have a scope 
that is wider than the field of employment. They also cover the issue of equal access to goods 
and services, including on the ground of sex. However, the Romanian Government decided to 
adopt  a  separate  piece  of  legislation  –  The  Goods  and  Services  Law495  –  exclusively 
transposing Directive 2004/113. While it fully transposes the Directive, this law has numerous 
provisions showing overlap with the rest of the existing legislation in the field of equality and 
non-discrimination.  

489   Romanian Constitutional Court, Decision No. 1237 of 6 October 2010, published in Official Journal 

No. 785/2010. 

490   Public Pensions Law, Article 54. 
491  CNCD, Decision No. 455 of 20 August 2009. 
492   Public Pensions Law, Article 97(1)(b). 
493   Public Pensions Law, Article 53(3). 
494  Government Emergency Ordinance No. 83 of 4 December 2012 amending Law No. 202/2002 regarding equal 
opportunities and equal treatment between women and men (OUG Nr.83 din 04.12.2012 pentru modificarea şi 
completarea Legii nr. 202/2002 privind egalitatea de şanse şi de tratament între femei şi barbaţi). 

495  Ordonanta de Urgenta a Guvernului nr.61/2008 privind implementarea principiului egalitatii de tratament 
intre femei si barbati in ceea ce priveste accesul la bunuri si servicii si furnizarea de bunuri si servicii.  

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The Goods and Services Law exactly reproduces the scope and all exceptions provided 
for in Directive 2004/113. It applies to all persons who provide goods and services available 
to  the  general  public,  public  or  private  legal  persons  and  public  bodies.  These  goods  and 
services are offered outside the field of private and family life and do not apply to media and 
advertising,  education  and  employment,  including  independent  professions.  Such  legal 
limitations  are  inconsistent  with  the  rest  of  Romanian  legislation,  which  exceeds  the 
requirements  of  Directive  2004/113  and  was  in  place  even  before  the  Goods  and  Services 
Law  was  adopted.  First,  the  Antidiscrimination  Law  does  not  allow  any  exceptions,  e.g. 
regarding  real  estate  contracts,  bank  loans  and  any  other  type  of  contract.496  Second,  the 
Gender Equality Law applies to services in the field of education and media and advertising. 

As  to  the  compliance  with  the  Test-Achats  case,497  at  the  end  of  December  2012,  the 
Commission  for  the  Surveillance  of  Insurances  (Comisia  de  Supraveghere  a  Asigurǎrilor) 
issued a press release stating that the result of the Test-Achats case was to enter into force on 
21  December  2012.  It  was  not  until  11  September  2013  that  the  Commission  adopted  the 
norms for the regulation of unisex premiums and benefits.498 The norms stipulate among other 
provisions that ‘sex’ as an actuarial factor in the calculation of premiums and benefits should 
not result in differences in the premiums and benefits for the insured person. Moreover, at the 
end  of  April  2013,  the  Goods  and  Services  Law  was  amended  in  order  to  comply  with 
requirements laid down in the Test-Achats decision. Proportionate differences in individuals' 
premiums and benefits where the use of sex is a determining factor in the assessment of risk 
based  on  relevant  and  accurate  actuarial  and  statistical  data  is  no  longer  allowed  by  law.499 
Moreover,  sex  as  a  factor  in  the  assessment  of  premiums  and  benefits  within  insurance 
services  and  associated  financial  services  must  not  determine  differences  in  premiums  and 
benefits for the insured person, in all contracts concluded by this person.500 

The  case  law  of  the  CNCD  in  this  field  is  dominated  by  a  series  of  cases  of 
discrimination  based  on  sex  against  men  who  are  refused  by  hospitals  when  they  wish  to 
accompany  their  small  children  during  hospitalisation.  The  CNCD  acknowledged  that 
hospitals’ policy is rooted in the stereotype that only mothers or other women from the family 
are  to  take  care  of  small  children.501  In  2012,  the  CNCD  decided  on  an  interesting  case  of 
discrimination against women in the access to goods and services. The CNCD sanctioned a 
service  provider  for  displaying  an  announcement  at  the  ticket  booth  that  women  were  not 
allowed  to  buy  tickets  for  a  particular  football  game.  The  CNCD  stated  that  the  measure, 
allegedly  taken  to  protect  women  from  the  violence  that  was  expected  to  escalate  at  that 
particular game, did not serve a legitimate aim; these events should not be violent in the first 
place and such a way of addressing violence in sports may give rise to the idea that women 
should be generally excluded from football events.502 

496  Antidiscrimination Law, Article 10. 
497  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

498  Comisia de Supraveghere a Asigurǎrilor, Norm No.11/2013 on the implementation of the principle of equal 

treatment between women and men in access to services in the field of insurances and the provision of services 
in the field of insurances (Norma nr.11/2013 privind  implementarea principiului egalităţii de tratament între 
femei şi bărbaţi în ceea ce priveşte accesul la serviciile din domeniul asigurărilor şi furnizarea de servicii în 
domeniul asigurărilor), published in Official Journal No.593 of 20 September 2013. 

499  Law 128/2013 for the abolishing of Article 7(2)-(4) of Emergency Ordinance No. 61/2008 regarding the 
implementation of the principle of equal treatment between women and men with respect to access to and 
supply of goods and services (Legea 128/2013 pentru abrogarea alin. (2)-(4) ale art. 7 din Ordonanta de 
urgenta a Guvernului nr. 61/2008 privind implementarea principiului egalitatii de tratament intre femei si 
barbati in ceea ce priveste accesul la bunuri si servicii si furnizarea de bunuri si servicii), Article I (hereafter 
‘2013 Amendment of Goods and Services Law’).  

500  2013 Amendment of Goods and Services Law, Article II.  
501  E.g. CNCD, Decision No.187 of 19 July 2010. 
502  CNCD, Decision No. 489 of 21 November 2012. 

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7. Enforcement and compliance aspects 

The Gender Equality Law does not contain provisions regarding victimisation. However, the 
Goods  and  Services  Law503  and  the  Antidiscrimination  Law  sanction  victimisation  as  any 
adverse treatment carried out in reaction to a complaint or legal action introduced in court by 
a  person  regarding  a  breach  of  the  principle  of  equal  treatment.504  The  CNCD  has  recently 
applied this general provision and sanctioned an employer for firing a woman in reply to her 
lodging an internal complaint about sexual harassment.505  

The burden of proof has three different definitions in the three laws in the field.506 Only 
the recently amended provisions regarding the burden of proof of the Antidiscrimination Law 
are  in  compliance  with  the  Directives.507  The  CNCD  applies  the  burden  of  proof  from  this 
general  law  in  cases  of  alleged  discrimination  on  the  ground  of  sex.  This  practice  is 
beneficial,  given  the  fact that  the  definitions  from  the  Gender  Equality  Law  and  the  Goods 
and  Services  Law  are  unclear,  and  therefore  fail  to  correctly  transpose  the  Directives. 
Nevertheless,  the  CNCD  remains  inconsistent  in  applying  the  burden  of  proof  in  cases  of 
discrimination on all grounds. 

Civil-law  compensation,  reinstatement,  and  administrative  sanctions  are  available 
remedies to victims of breaches of the principle of gender equality. The Gender Equality Law 
introduces  a  difference  regarding  employees  that  complain  about  discrimination  on  the 
ground  of  sex,  compared  to  all  other  victims  of  discrimination.  They  first  have  to  file  an 
internal complaint with the employer, and only if the conflict is not solved by mediation may 
they  submit  a  complaint  to  court  or  to  the  CNCD.508  The  same  is  prescribed  for  alleged 
victims of sex discrimination related to access to and supply of goods and services: they must 
first  seek  to  reconcile  with  the  service  provider.509  The  administrative  sanctions  vary  from 
EUR 680 (RON 3 000) to EUR 22 720 (RON 100 000), except for cases that occur in the field 
of access to and supply of goods and services, where the administrative fine is lower (from 
EUR 340  (RON 1 500)  to  EUR 3 400  (RON 15 000)).  In  practice,  administrative  fines 
awarded  by  the  CNCD  are  closer  to  the  minimum  range;  this  is  when  the  CNCD  does  not 
choose to issue written warnings and recommendations instead of fines. Moreover, civil-law 
compensations for moral damages, when awarded by courts for breaches of the principle of 
equality, are very low in the Romanian justice system, rendering the mechanism ineffective. 

Administrative complaints and court actions against sex discrimination are tax exempted. 
Recently,  an  amendment  of  the  Gender  Equality  Law  has  limited  the  possibility  of  alleged 
victims  to  be  represented  or  assisted  by  trade  unions  or  non-governmental  organisations  to 
administrative  procedures  only,  and  not  court  proceedings,  which  is  in  breach  of  the 
Directives.510 Nonetheless, the Antidiscrimination Law prescribes that all groups exposed to 

503  Emergency Ordinance No. 61/2008 regarding the implementation of the principle of equal treatment between 

women and men with respect to access to and supply of goods and services (Ordonanta de Urgenta a 
Guvenului nr.61/2008 privind implementarea principiului egalitatii de tratament intre femei si barbati in ceea 
ce priveste accesul la bunuri si servicii si furnizarea de bunuri si servicii), Article 14 (hereafter ‘Goods and 
Services Law’). 

504  Antidiscrimination Law, Article 2(7). 
505  CNCD, Decision No. 345 of 6 September 2011. 
506  Antidiscrimination Law, Article 20(6) and Article 27(4), Gender Equality Law, Article 44, and Goods and 

Services Law, Article 12. 

507  Law 61/2013 for the amendment of Government Ordinance No. 137/2000 regarding the prevention and 

sanctioning of all forms of discrimination (Legea 61/2013 pentru modificarea Ordonantei Guvernului nr. 
137/2000 privind prevenirea si sanctionarea tuturor formelor de discriminare). 

508  Gender Equality Law, Article 39. 
509  Goods and Services Law, Article 9. 
510  Gender Equality Law, Article 44, introduced by Emergency Government Ordinance 83/2012 for the 

amendment of Law No. 202/2002 regarding equal opportunities and treatment between women and men 
(Ordonanta de Urgenta a Guvernului 83/2012 pentru modificarea si completarea Legii nr. 202/2002 privind 
egalitatea de sanse si de tratament intre femei si barbati). 

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discrimination  may  benefit  from  such  support  in  both  administrative  procedures  and  court 
proceedings.511 

The national gender equality body, the National Agency for Equal Opportunities between 
Women  and  Men  (Agenţia  Naţionalǎ  pentru  Egalitate  de  Şanse  între  Femei  şi  Bǎrbaţi 
(ANES)), was closed down a few years ago. Only some of its competences have been taken 
over  by  the  Ministry  of  Labour,  Family  and  Social  Protection  through  the  Department  for 
Equal  Opportunities  between  Women  and  Men,  an  alternative  that  does  not  fulfil  the 
conditions of independence. The CNCD is the national equality body dealing with all grounds 
of discrimination. 

Social partners do not play a decisive role in Romania in ensuring compliance with and 
enforcement of the Gender Equality Law. Although legally binding, collective agreements are 
not widespread and they are not used as specific means to implement gender equality. 

8. Overall assessment 

The implementation of the EU gender equality acquis is satisfactory and this is mainly due to 
the  adoption  of  the  general  Antidiscrimination  Law  and  the  establishment  of  the  CNCD. 
Although having special legislation focusing exclusively on gender equality shows particular 
political support to gender issues, the way in which EU legislation has been transposed has 
resulted  in  overlap,  lack  of  clarity  and  inconsistencies  that  affect  women  from  all  groups 
protected  against  discrimination.  This  situation  makes  it  more  difficult  for  courts  or  other 
competent  authorities  to  examine  and  sanction  discrimination  in  an  effective,  proportionate 
and dissuasive way. It is imperative that all laws in the field of antidiscrimination and gender 
equality  are  consolidated  in  one  piece  of  legislation,  while  bearing  in  mind  that  higher 
standards established in each of these laws should be preserved. 

Despite  generous  legal  provisions,  courts  and  the  CNCD  choose  lower  or  symbolic 
sanctions, frequently rendering the sanctioning mechanism ineffective. This has an impact on 
the limited case law because persons exposed to discrimination do not feel motivated to bring 
complaints or take further legal action. 

Closing  down  the  national  gender  equality  body  (ANES)  was  detrimental  because  now 
there no longer is a specialised institution focusing exclusively on gender equality. The Equal 
Opportunities Department within the Ministry of Labour and the CNCD do not substitute the 
ANES’s absence. 

SLOVAKIA – Zuzana Magurová 

1. Implementation of central concepts 

The Antidiscrimination Act (ADA) is a general Act on equal treatment in public and private 
relationships  and  protection  against  discrimination.512  The  ADA 
regulates  direct 
discrimination,  indirect  discrimination,  harassment  and  sexual  harassment,  instruction  to 
discriminate, incitement to discriminate and victimisation.  

The  definition  of  direct  discrimination  in  the  ADA  is  almost  identical  to  the  definition 
taken  from  directives.  Direct  discrimination  is  defined  not  only  as  an  action  but  also  an 
omission  that  causes  one  person  to  be  treated  less  favourably  than  another  is  or  has  been 
treated in a comparable situation. 

The  ADA  applies  an  individual  rather  than  a  collective  principle  to  the  definition  of 
indirect  discrimination.  Until  the  adoption  of  the  amendment  of  the  ADA  that  has  been  in 
effect  since  1  April  2013,  the  definition  deviated  from  the  definitions  contained  in 

511  Antidiscrimination Law, Article 28. 
512  Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and on Protection against Discrimination and on 

amendment of certain Acts (Antidiscrimination Act), as amended. 

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the directives by permitting only actual, not potential discrimination. The current definition is 
almost identical to the definitions contained in the directives.  

From  1  April  2008,  repeated  attempts  were  made  to  introduce  positive  action  (literally 
‘temporary balancing measure’, as translated from Slovak) into the ADA. During the adoption 
process, Parliament refused to include temporary balancing measures on the grounds of sex 
and  ethnic  or  racial  origin.  Instead  it  replaced  these  grounds  by  ‘social  and  economic 
disadvantage’.  In  an  amendment  to  the  ADA  adopted  in  2013,  the  initial  formulation 
‘discrimination does not mean the adoption of temporary balancing measures to eliminate the 
forms  of  social  and  economic  discrimination  and  discrimination  on  the  grounds  of  age  and 
disability  aimed  to  achieve  the  equality  of  opportunities  in  practice’  was  replaced  by 
‘discrimination  does  not  mean  the  adoption  of  temporary  balancing  measures  for  the 
elimination of disadvantages arising on the grounds of race or ethnic origin, membership of 
a national minority or ethnic group, gender or sex, age or disability, aimed to achieve equality 
of  opportunities in  practice’. The  ADA  therefore  permits  the adoption  of  positive  action  on 
the grounds of sex and gender for the first time.  

In the ADA the prohibition of an instruction to discriminate is realised in two definitions: 
in  the  instruction  to  discriminate  and  in  the  incitement  to  discriminate.  The  instruction  to 
discriminate usually abuses the subordinate position of an individual to discriminate against 
a third  party.  Incitement  to  discriminate  is  persuading,  affirming  or  inciting  a  person  to 
discriminate against a third person and the relevant prohibition applies in all types of relations 
in areas where discrimination is prohibited.  

The definition of harassment in the ADA is not fully compatible with the directives, but 
in some aspects goes beyond the requirements of the directives and may  guarantee a higher 
level of protection against harassment than the directives. In addition to covering the intention 
or  consequence  of  a  violation  of  an  individual’s  dignity,  it  permits  an  actual  or  potential 
intervention into a person’s freedom. As the ADA does not define this freedom in detail, it 
can be widely interpreted as personal freedom, freedom of religious belief, conviction, speech 
and  movement.  Unlike  the  directives,  the  definition  of  harassment  in  the  ADA  does  not 
contain any direct reference to the ground on which the harassment is prohibited. However, 
from the logical and systematic interpretation it is clear that the prohibition of harassment is 
relevant only on the grounds as defined in the recital of the ADA.  

The definition of sexual harassment (provided in the ADA of 1 April 2008) is not fully 
compatible  with  the  definitions  contained  in  the  directives.  It  does  not  include  an  explicit 
reference to unwanted conduct.  From  the  interpretation  of  the  definition  it is also  clear that 
potential  violation  of  an  individual’s  dignity  should  be  assessed  individually  and 
independently  from  whether  an  intimidating,  hostile,  degrading,  humiliating  or  offensive 
environment  has  been  created.  The  definition  of  sexual  harassment  in  the  ADA  requires 
a cumulative  fulfilment  of  the  condition  of  actual  or  potential  violation  of  an  individual´s 
dignity  and  the  creation  of  an  intimidating,  hostile,  degrading,  humiliating  or  offensive 
environment  without  indicating  the  difference  between  these  two  requirements.  This  means 
that the definition of sexual harassment in the ADA is restrictive compared to the definitions 
contained in the anti-discrimination directives. 

2. Equal pay and equal treatment at work 

2.1. Equal pay  
The  principle  of  equal  pay  for  men  and  women  is  generally  guaranteed  under  the  Slovak 
Constitution.513 According to Section 36, all employees have the right to fair and satisfactory 
conditions  at  work,  in  particular  the  right  to  remuneration  for  the  work  performed  and  the 
right of collective bargaining. The principle of equal pay can also be deduced from the ADA. 
It  provides  that  the  principle  of  equal  treatment  applies  to  employment  relationships, 
including to remuneration. The general principle of equal pay for equal work is laid down in 

513  Act No. 460/1992 Coll. Constitution of the Slovak Republic, as amended, effective since 1 October 1992. 

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the  Labour  Code.514  Its  provisions  state  that  pay  conditions  must  be  agreed  on  without  any 
discrimination on grounds of sex. Women and men shall be entitled to equal pay for the same 
work  or  work  of  equal  value.  This  condition  applies  to  all  remuneration  for  work  and  all 
benefits  that  are  paid  in  relation  to  employment  in  accordance  with  Article  157  TFEU  and 
Article  4  Recast  Directive.  The  principle  of  equal pay  covers  employees,  part-time  workers 
(including job sharing), and workers who perform home-work or telework.  

Article 119a of the Labour Code includes a definition of work of equal value. The same 
work or work of equal value is considered to be work of the same or comparable complexity, 
responsibility  and  urgency,  which  is  performed  in  the  same  or  similar  working  conditions 
producing the same or comparable productivity and results of work for the same employer.515 
According to the Labour Code, if the employer implements a system of job valuation, the 
valuation  must  be  based  on  the  same  criteria  for  men  and  women  without  any  sexual 
discrimination.  In  the  valuation  of  the  work  of  women  and  men,  employers  may  use  other 
objectively measurable criteria if they can be applied to all employees without regard to sex. 
There are no detailed provisions on job classifications and remuneration is based on collective 
or  individual  agreements.  The  only  job  classification  is  the  classification  contained  in  an 
attachment  to  the  Labour  Code  which  contains  a  job  classification  for  the  purposes  of 
determining  a  coefficient  for  setting  the  right  minimum  pay  for  each  particular  job.  The 
attachment  specifies  6  degrees  of  work  difficulty  according  to  the  following  criteria: 
complexity, responsibility and physical/mental effort. 

The Labour Code also applies (subsidarily) to employment relationships of civil servants 
and  public  servants,  unless  stipulated  otherwise  by  a  special  regulation.  Examples  of  such 
special regulations are the Act on State Service, for civil servants, and the Act on Performing 
Work in the Public Interest, the Act on Rewarding Some Employees when Performing Work 
in the Public Interest and the Government Regulation on Catalogues of Jobs to be performed 
in the Public Interest, for public servants.  

Pay and employment conditions of civil servants are covered only by separate laws. The 
Act  on  State  Service  covers  civil  servants:  court  clerks,  judicial  trainees  of  courts,  judicial 
trainees  of  the  prosecution.516  This  Act  does  not  cover  the  constitutional  representatives: 
members of Parliament, the President, members of the Government, the president and vice-
president  of  the  Supreme  Audit  Office,  judges  of  the  Constitutional  Court,  judges, 
prosecutors,  the  public  guardian  of  rights  (Ombudsman),  and  the  director  of  the  Bureau  of 
National Security, whose remuneration is regulated in separate laws.  

There  are  also  separate  laws  covering  the  remuneration  for  specific  groups  of  civil 
servants,  such  as  policemen,  professional  soldiers,  members  of  the  Slovak  Intelligence 
Service, the Bureau of National Security, Prison Corps and Judicial Guard (so-called ‘power 
branches’).  

According to the position to which civil servants are appointed and the function to which 
they are assigned, they receive a salary based on the relevant salary class. The salary class is 
specified  according  to  the  most  demanding  activity  to  be  performed  in  the  relevant  civil 
service employment post, in compliance with Annex 1, which contains the description of the 
particular salary classes.  

The Act on Performing Work in the Public Interest covers public servants. This includes, 
inter  alia,  employees  of  state  administration  authorities  (except  those  falling  under  the  civil 
service),  municipalities,  regional  bodies,  and  legal  entities  set  up  by  any  of  the  previous 
bodies.517  

514  Act No. 311/2001 Coll. Labour Code, as amended.  
515  The situation has improved in the definition of wages in the amendment of the Labour Code, effective since 
1 September 2007. It was an essential reform, in which the definition of wage contained in Article 118 was 
changed and the principle of equal remuneration for equal work and for work of equal value was laid down in 
the new Article 119a. 

516  Act No. 400/2009 Coll. on State Service and on amending and supplementing certain other Acts, as amended.  
517  Act No. 552/2003 Coll. on Works Performed in the Public Interest, as amended. 

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The  Act  on  Rewarding  Some  Employees  when  Performing  Work  in  the  Public Interest 
regulates the salaries of public servants, their ranking in salary classes and in salary levels.518 
For each salary class in the public service, there are specific rules relating to the qualifications 
required and work difficulty, which are determined according to criteria such as complexity, 
responsibility  and  physical/mental  efforts.  The  ranking  of  public  servants  in  salary  levels 
depends on the length of their experience. 

The Government Regulation on Catalogues of Jobs to be Performed in the Public Interest 
contains the details of all activities that are covered by the individual job classes.519 They are 
divided according to whether mental or physical work prevails in each particular job. 

There is no known case law in relation to sex-based discrimination in job classification 

systems. No information is available regarding relevant national case law on this issue. 

2.2. Access to work and working conditions 
General regulations regarding the right to equal treatment for women and men with regard to 
access  to  employment,  vocational  training,  working  conditions  and  remuneration  are 
contained in the ADA, and more detailed regulations in the Labour Code and other laws. 

In  conformity  with  the  principle  of  equal  treatment  the  ADA  includes  a  prohibition  of 
discrimination on the grounds of sex in the field of access to employment, occupation, self-
employment  and  functions  including  job  requirements  (which  also  encompasses  job 
advertisements),  and conditions  and  means  of  performing  employee  selection. The  Act  also 
includes a  general  prohibition  of discrimination  in the  access to  vocational  training  and job 
selection  consultancy  agencies.  The  ADA  also  includes  a  prohibition  of  discrimination  in 
terms  of  promotion.  The  ADA  furthermore  refers  to  the  existing  laws  in  the  area  of 
employment, self-employment and occupation without making any distinction between legal 
relationships in the private and the public sector. 

The  Labour  Code  already  contains  more  detailed  regulations  regarding  access  to 
employment. In addition to the general equal treatment clause in Article 13 that applies to all 
employment  relationships (including  part-time  work,  job  sharing,  home-work  and  telework) 
from the beginning until the termination of the employment, it contains a special Article on 
so-called ‘Pre-contractual Relations’ (Article 41). This Article contains a specific prohibition 
for  a future  employer  to  require  information  on  pregnancy  and  family  relationships  and  a 
prohibition  to  breach  the  equal  treatment  principle.  This  Article  also  applies  to  the 
employment relationships of civil servants and public servants. 

In Article 14(1) of the Act on Services of Employment the right to access to employment 
is  defined  as  the  right  to  receive  help  either  in  the  search  for  an  appropriate  job,  or  in 
vocational training and preparation for the labour market. The right to access to employment 
is  guaranteed  in  accordance  with  the  principle  of  equal  treatment.  In  order  to  achieve  the 
application  of  the  equal  treatment  principle  in  access  to  employment,  the  Act  also  contains 
a provision  in  Article  13(z)(a)  about  the  duty  of  employment  agencies  to  inform  job 
applicants  about  their  right  to  equal  treatment  in  access  to  employment.  Moreover,  the  Act 
contains a specific prohibition in Article 62 that prohibits job advertisements with job offers 
containing any restrictions or discrimination on the grounds inter alia of sex, marital or family 
status, or social origin. According to this Article, the criteria for selection of employees must 
guarantee equal opportunities for all citizens. 

The original wording of the concept of different treatment in the ADA as adopted in 2004 
was changed in September 2007 to produce a more precise definition, identical to the wording 
of the  Recast  Directive. The  ADA  has  a  different  definition  in  Section  8(1). The  respective 
provision provides that ‘a treatment that is justified by the nature of occupational activities or 
by the circumstances under which such activities are carried out, if the ground constitutes a 

518  Act No. 553/2003 Coll. on Rewarding Some Employees when Performing Work in the Public Interest, as 

amended. 

519  Government Regulation No. 341/2004 Coll. on Catalogues of Jobs to be Performed in the Public Interest. 

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genuine  and  determining  occupational  requirement,  shall  not  constitute  discrimination, 
provided that the objective is legitimate and the requirement is proportionate’. 

2.3. Occupational pension schemes 
The occupational pension schemes are not regulated by special legislation. Some provisions 
of  the  Act  on  Additional  Pension  Savings,  however,  could  be  considered  as  laying  down 
conditions  for  such  schemes.520  The  aim  of  this  Act  is  to  enable  an  insured  person,  e.g.  an 
employee according to Labour Code and professional dancer, to receive an additional pension 
income in old age or during invalidity and to grant his or her survivors an additional pension 
income  in  the  event  of  the  insured  person’s  death.  In  Article  7,  the  Act  prohibits 
discrimination in the accrual of additional pension savings, referring to the ADA (including 
the provisions on legal protection and proceedings in matters concerning the violation of the 
principle  of  equal  treatment).  It  also  states  that  any  provisions  of  the  collective  agreement 
connected  with  additional  pension  savings,  or  of  the  employer's  agreement,  participant's 
agreement, plan of endowments/payments, or bylaws of the additional pension fund that are 
not in full compliance with the principle of equal treatment are invalid. Pursuant to Article 34 
of  this  Act,  the  additional  pension  savings  company  is  obliged  to,  inter  alia,  apply  the 
principle of equal treatment in relation to all savers. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

According  to  the  ADA,  objectively  justified  differences  in  treatment  on  grounds  of  sex  are 
allowed where their purpose is the protection of pregnant women and mothers. 

The Labour Code provides that for pregnant women, mothers until the completion of the 
ninth  month  after  confinement  and  breastfeeding  mothers,  working  conditions  shall  be 
secured that will protect their medical state with respect to pregnancy, childbirth, care for the 
child after birth, and their special relationship with the child after birth.  

Pregnant  women,  mothers  until  the  end  of  the  ninth  month  after  confinement  and 
breastfeeding  women  must  not  be  employed  in  work  activities  that  are  physically 
inappropriate or harmful for them. If a pregnant woman performs work that is prohibited for 
pregnant women to perform, or which according to medical opinion threatens her pregnancy, 
the employer shall be obliged to implement a temporary change to her working conditions. If 
a change to the woman’s working conditions is not possible, the employer shall temporarily 
transfer her to work that is suitable and in which she may earn the same salary as the salary 
that she earns for her normal work within the scope of the employment contract. If this is not 
possible, he/she shall transfer her, upon her agreement, to a different type of work. If transfer 
of  a  pregnant  woman  to  day  work  or  transfer  to  other  suitable  work  is  not  possible,  the 
employer shall be obliged to give the pregnant employee time off and wage compensation. If 
a woman, in work she was transferred to by no fault of her own, earns a salary that is lower 
than that earned in her normal work, for the purpose of balancing out the difference she shall 
be  provided  with  an  equalisation  benefit  for  pregnancy  and  motherhood  according  to  the 
Social  Insurance  Act.  The  employer  is  also  obliged  to  transfer  a  pregnant  woman  working 
nights  to  day  work,  if  the  pregnant  woman  applies  for  such  transfer.  If  she  cannot  be 
transferred  to  day  work,  the  employer  is  obliged  to  give  a  pregnant  employee  time  off  and 
wage compensation.  

An employer shall be obliged to allow a mother who breastfeeds her child special breaks 
for breastfeeding, in addition to the normal work breaks. Only women who have given birth 
to a child are entitled to such breaks; fathers or other persons nursing a child are not. Breaks 
for breastfeeding shall count as working time and shall be covered by wage compensation in 
the amount of the average earnings (paid by the employer). 

For  women  and  men,  working  conditions  shall  be  secured  that  will  enable  them  to 
perform their social tasks in the upbringing of children and their care. To these persons the 

520  Act No. 650/2004 Coll. on Additional Pension Savings, as amended. 

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legislator  therefore  grants  special  protection,  which  is  manifested  in  working  conditions, 
adaptation of working hours, prohibition of termination of the employment relationship within 
a  protected  period,  maternity  or  parental  leave  and  childcare,  in  various  provisions  of  the 
Labour Code. 
  Maternity  leave  is  given  by  the  employer  to  its  employees  in  the  form  of  time  off. 
Maternity leave of a woman connected with childbirth must not be shorter than 14 weeks and 
if  the  woman  goes  on  maternity  leave  before  childbirth,  the  maternity  leave  must  not  end 
before  the  sixth  week  after  childbirth.  Female  employees  are  entitled  to  maternity  leave  in 
connection with childbirth and to care for a newborn child either for the duration of 34 weeks, 
or 37 weeks in the case of single mothers, or 43 weeks for multiple births.  Maternity leave 
generally  commences  6  weeks  prior  to  the  expected date  of  confinement.  A  woman  goes  on 
maternity leave from the date stated by the doctor. Male employees are also entitled to parental 
leave on the same conditions if they are the ones who care for a new-born child. A man goes on 
parental leave from the birth of the child. Male employees are entitled to parental leave in two 
separate cases: 1. from the birth of a child in connection with the care of a new-born child (the same 
scope as maternity leave) or 2. if he requests parental leave in order to enhance the care of a child until 
the age of three.  

The  employer  is  obliged  to  give  parental  leave  to  the  parents  (women  or  men)  at  their 
request.  Parental  leave  shall  be  allowed  until  the  child  turns  three  and  if  the  child  is  in  ill 
health  until  the  child  turns  six.  Parental  leave  is  allowed  within  the  scope  requested  by  the 
parent, but is usually for a period not shorter than one month. 

Slovak  legislation  complies  with  the  directives,  and  the  regulations  on  the  length  of 
maternity  and  parental leave  go  further  than the  directives require.  However, there is still  a 
great deal of room for improvement from a legislative point of view, which could contribute 
to achieving gender equality in practice. One obstacle is that if both parents apply for parental 
leave, only one will be entitled to parental allowance. Despite the fact that the Labour Code 
provides that the second spouse/parent can take parental leave in the form of unpaid time off 
from  work  (with  maintenance  of  employment  guaranteed),  the  parental  allowance  is  not 
enough to cover the living costs of the second spouse/parent. Slovak legislation does not offer 
paternity leave for fathers around the time of the birth of their child or in the weeks after the birth, 
which they can use in the period that the mothers are also on maternity leave. 

4. Statutory schemes of social security 

In Slovakia, there are no specific regulations regarding occupational social security schemes. 
The  social  security  system  is  based  on  three  schemes:  social  insurance,  which  secures  a 
decent income in old age, invalidity, pregnancy and disease, and provides survivors’ pension; 
state social benefits, which are direct financial contributions by the State to offer assistance in 
overcoming an undesirable fall in the population’s standards of living due to the occurrence or 
lasting of certain events in the lives of families (dependent children) and citizens; and social 
assistance, which is the contribution of the State to help the citizen in need, where the role of 
the State is only to assist the citizen in overcoming his/her crisis situation. It is expected that 
the citizen will actively seek to overcome his/her crisis situation.  

Social  insurance  consists  of  a  mandatory  public  insurance  component  (based  on 
mandatory contributions and defined benefits) governed by the Act on Social Insurance,521 a 
mandatory  or  voluntary  savings  component  governed  by  the  Act  on  Old-Age  Pension 
Savings522 and a voluntary private savings component, which is a supplementary component 
governed by the Act on Additional Pension Savings. 

The scope of social insurance according to the Act on Social Insurance consists of five 
independent  sub-schemes:  sickness  insurance,  pension  insurance  (old-age  insurance  and 
invalidity insurance), accident insurance, guarantee insurance and unemployment insurance. 

521  Act No. 461/2003 Coll. Act on Social Insurance, as amended. 
522  Act No. 43/2004 Coll. Act on Old-age Pension Savings, as amended. 

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The Act on Social Insurance covers employees: public servants, civil servants, constitutional 
representatives,  the  public  guardian  of  rights  (ombudsman),  employees  in  an  employment 
relationship according to the Labour Code, members of co-operatives, etc. 

This  Act  does  not  relate  to  the  so-called  ‘power  branches’,  i.e.  specific  groups  of  civil 
servants, such as policemen, professional soldiers, members of the Police Corps, the Slovak 
Intelligence Service, Bureau of National Security, Prison Corps and Judicial Guard. Separate 
laws  regulate  the  schemes  of  these  groups  of  professionals.  Their  employer  (Ministry  of 
Defence, Ministry of Interior) pays contributions to special funds associated with ministerial 
budget chapters. 

5. Self-employed persons 

A special Act only regulating the issues of self-employed persons does not exist in Slovakia. 
The term ‘self-employed person’ was previously regulated by several Acts,523 which however 
included different definitions of this term. The definition of this term was unified in 2011.524  

The maternity allowance paid by the Social Insurance Agency and the parental allowance 
paid by the State are also paid to self-employed women, on the same conditions as employed 
women.  

The  equal  treatment  of  self-employed  persons  and  the  protection  of  self-employed 
women during pregnancy and motherhood are regulated in several special laws. In relation to 
self-employed persons the directives have been transposed more or less satisfactorily.  In all 
legislation that contains a definition of self-employed persons, the principle of equal treatment 
is expressly enshrined in compliance with the concept of equal treatment as in the ADA.  

6. Goods and services 

Directive  2004/113/EC  has  been  transposed  by  an  amendment  to  the  ADA  included  in  Act 
No. 85/2008 Coll. and also partially by the Insurance Act and the Consumer Protection Act.525 
The  amendment  to  the  ADA  broadens  the  protection  against  discrimination  in  the  area  of 
social  protection,  healthcare,  education, as  well as in the  access to  and  the  supply  of  goods 
and  services,  including  housing,  that  are  provided  to  the  public  by  legal  entities  and 
individuals, i.e. entrepreneurs. The grounds on which discrimination should be prohibited are: 
sex,  religion  or  belief,  race,  national  or  ethnic  origin,  disability,  age,  sexual  orientation, 
marital status, family status, colour of skin, language, political or other opinion, national or 
social  origin,  property,  lineage  or  other  status.  In  previous  legislation  the  only  grounds  on 
which  discrimination  was  prohibited  in  these  areas  were  sex,  race  and  national  or  ethnic 
origin.  Prohibition  of  discrimination  in  the  access  to  and  supply  of  goods  and  services  is 
limited to the sale of goods and the supply of services in public and targeted to the public. The 
provisions of the ADA do not apply to goods and services offered or provided on a private 
basis (e.g. providing and offering goods to the members of a private association, family etc.). 

Under  the  Consumer  Protection  Act,  when  providing  goods  and  services  to  consumers 
the seller has the obligation to comply with the principle of equal treatment stipulated in the 
Antidiscrimination Act. 

523  Act No. 461/2003 Coll. Act on Social Insurance, as amended; Act No. 5/2004 Coll. Act on Services of 

Employment, as amended. 

524  The Act on Social Insurance defines a self-employed person as an individual who has reached the age of 18 
and is registered in accordance with tax regulations as: an entrepreneur who has income from agricultural 
production, forestry and water management, an entrepreneur who conducts business on the basis of a trade 
licence (tradesperson), an entrepreneur who conducts business on the basis of an authorisation other than a 
trade licence (e.g. auditor, tax consultant, notary public), a partner in a public company, an active partner in a 
special partnership, an entrepreneur who has income from author’s activity, industrial or other intellectual 
property, an expert and interpreter, and an entrepreneur who has income from intermediary business according 
to other regulations. 

525  Acts No. 8/2008 Coll. Insurance Act and No. 250/2007 Coll. Consumer Protection Act, respectively. 

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Amendments  to  the  ADA  and  the  Insurance  Act  (in  effect  since  1  April  2013) 
significantly  intervened  in  the  insurance  sector.  The  ADA  previously  allowed  the  use  of 
differences based on sex for the determination of the amount of insurance premiums and the 
calculation of insurance benefits by insurance companies without regarding such approach as 
discriminatory. Since 1 April 2013 such different approach, with the exception of insurance 
contracts concluded before 1 April 2013, is regarded as discrimination.  

7. Enforcement and compliance aspects 

Victimisation,  according  to  the  ADA,  is  considered  to  be  discrimination.  It  is  an  action  or 
omission  which  has  adverse  consequences  for  the  person  in  question  and  directly  relates  to 
legal protection against discrimination when the person in question or a third person submits a 
complaint regarding or testifies to a breach of the principle of equal treatment. The ADA does 
not  regulate  other  methods  of  protection  with  respect  to  a  breach  of  the  principle  of  equal 
treatment (e.g. filing complaints or seeking reconciliation). However, special laws regulating 
the principle of equal treatment also regulate opportunities to claim protection. For example, 
the  Labour  Code  allows  an  employee  to  complain  to  the  employer  when  there  has  been  a 
breach of the principle of equal treatment, with the employer then being obliged to respond to 
the complaint without unnecessary delay, to rectify the situation, to refrain from illegal action 
and to remove its consequences. This provision also applies to the public sector at universities 
and  schools.  A  common  feature  of  these  provisions  is  that  there  are  no  procedural 
mechanisms specified for investigating the complaints. 

The  ADA  also  regulates  anti-discrimination  proceedings.  It  is  the  only  Act  that  also 
includes provisions regarding  the  shift  of  the  burden of  proof. The  draft  ADA  initially  also 
envisaged an amendment of the Code of Civil Procedure, but this idea was abandoned in the 
end.  The  courts  therefore  tended  to  ‘only’  adhere  to  the  procedural  rule  and  avoid  the 
application of the provisions included in the ADA. They often justified the non-application of 
the principle of the shift of the burden of proof by the fact that this procedural principle was 
not provided for in the Code of Civil Procedure. Consequently, victims of discrimination were 
often  unsuccessful  in  court  proceedings  due  to  lack  of  evidence.  As  some  judgments 
concerning racial discrimination show, the situation is gradually improving. From the quoted 
judgments it is obvious that when courts apply the concept of the shift of the burden of proof, 
they apply it in accordance with the directives and with the case law of the European Court of 
Justice. The amendment of the provisions of Article 11(2) of the ADA has also contributed to 
the improvement of the situation. Due to the inaccurate transposition, the initial wording of 
Article 11(2) of the ADA contained the formulation ‘...if the claimant submits evidence (no 
facts)  to  the  court...’,  which  weakened  the  claimant’s  position  in  the  proceedings  regarding 
the  violation  of  the  principle  of  equal  treatment.  This  deficiency  has  been  eliminated  by 
amendment  of  the  quoted  provision,  which  was  replaced  by  ‘...if  the  claimant  informs  the 
court about facts...’.  

In comparison with the directives, according to the ADA the shift of the burden of proof 
is applied in relation to all forms of discrimination, i.e. not only in relation to direct or indirect 
discrimination.  The  scope  of  applicability  of  the  shift  of  the  burden  of  proof  is  therefore 
wider.  

According  to  the  ADA,  every  person  who  considers  him/herself to  have  been wronged 
because the principle of equal treatment has not been applied to them may pursue their claims 
according  to  the  judicial  process.  The  application  of  this  provision  in  practice  has  so  far 
shown  that  court  protection  in  proceedings  in  such  cases  is  very  limited.  This  particularly 
applies to cases where the aggrieved party can only claim adequate financial compensation or 
non-pecuniary compensation. In many cases in which women are discriminated against, only 
the claim for adequate compensation is possible. If the sanction in the form of redress is to be 
effective,  proportionate  and  dissuasive,  the  amount  of  money  claimed  needs  to  reflect  this. 
Many women who have been discriminated against are therefore discouraged from submitting 
a complaint  to court,  as  the  high  court  fees  often  constitute  a real  barrier  to  protecting  their 
right to equal treatment and enjoying protection from discrimination.  

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The social partners still pay little attention to equal opportunity. Trade unions primarily 
try to negotiate the highest possible increase in wages and the greatest degree of job security 
for  employees.  Equal  opportunity  issues  included  in  collective  agreements  have  mostly 
concerned  the  working  conditions  of  pregnant  women  and  employees  taking  care  of  young 
children. 

The  ADA  can  be  regarded  as  a progressive  and  comprehensive  piece  of  legislation, 
which in many provisions goes beyond the requirements of the anti-discrimination directives 
and  has  a wider  scope  ratione  personae  and  ratione  materiae.  It  not  only  provides  for  the 
prohibition  of  discrimination,  but  also  for  the  proactive  obligation  to  take  measures  for  the 
protection  against  discrimination  and  the  instruction  to  discriminate  as  one  of  the  forms  of 
discrimination.  The  action  in  the  public  interest  is  an  important  instrument  which  creates 
conditions for the procedural enforcement of the principle of equal treatment. 

Deficiencies in the ADA are the inaccurate transposition of provisions concerning sexual 

harassment.  

SLOVENIA – Tanja Koderman Sever 

1. Implementation of central concepts 

In  the  year  2007  important  changes  to  the  Employment  Relationship  Act  (hereinafter  the 
ERA)  and  the  Act  Implementing  the  Principle  of  Equal  Treatment  (hereinafter  the  AIPET) 
were made in order to properly implement some concepts of EU gender discrimination and to 
make uniform and gather all the relevant definitions in the above-mentioned laws. 

According to the above-mentioned legislation direct discrimination occurs when a person 
has been, is or could be treated less favourably than another person in an equal or comparable 
situation on the ground of his/her personal circumstances. Indirect discrimination occurs when 
an  apparently  neutral  provision,  criterion  or  practice  in  equal  or  comparable  situations  and 
under  similar  conditions  has  put,  puts  or  might  put  a  person  with  certain  personal 
circumstances in a less favourable position compared to other persons, unless that provision, 
criterion  or  practice  is  objectively  justified  by  a  legitimate  aim  and  the  means  of  achieving 
that  aim  are  appropriate  and  necessary.  Less  favourable  treatment  of  workers  related  to 
pregnancy  and  parental  leave  and  instructions  to  discriminate  are  also  deemed  to  be 
discrimination.   

Under  the  AIPET,  the  ERA  and  the  Regulation  on  Measures  to  Protect  the  Dignity  of 
Employees in Public Administration harassment is unwanted conduct, based on any kind of 
personal circumstance, with the purpose or effect of violating the dignity of the person and of 
creating an intimidating, hostile, degrading, humiliating or offensive environment. And sexual 
harassment is any form of undesired verbal, non-verbal or physical action or behaviour of a 
sexual  nature  with  the  effect  or  purpose  of  adversely  affecting  the  dignity  of  a  person, 
especially where this involves the creation of an intimidating, hostile, degrading, humiliating 
or offensive environment. Any sexual and other harassment is deemed to be discrimination. 

Special  measures  (positive  action  measures  and  encouraging  measures)  are  explicitly 
permitted and defined in the AIPET and in the Act on Equal Opportunities for Women and 
Men  (hereinafter  the  AEOWM).  They  are  temporary  measures  aimed  at  establishing  real 
equal  opportunities  for  women  and  men  as  well  as  promoting  gender  equality  in  specific 
fields  of  social  life,  in  which  the  non-balanced  representation  of  women  and  men  or  the 
unequal  status  of  persons  of  one  gender  is  ascertained.  Positive  action  measures  that  give 
priority  to  persons  of  the  gender  which  is  underrepresented  or  is  experiencing  an  unequal 
status and encouraging measures that provide special benefits or introduce special incentives 
for  the  purpose  of  eliminating  the  non-balanced  representation  of  women  and  men  or  an 
unequal status on account of gender may be adopted by state authorities, employers, political 
parties, civil society organisations and other subjects. 

The definitions of the central concepts in the national legislation are almost identical to 
the definitions in Directive 2006/54/EC. Some provisions go even further than what EU law 

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requires. An example is Provision 6 of the ERA which considers as discrimination not only 
the  less  favourable  treatment  of  women  related  to  pregnancy  or  maternity  leave  but  all 
workers related to pregnancy and parental leaves, and the latter are provisions of the AIPET 
and  the  AEOWM  which  provide  a  precise  and  detailed  legal  ground  for  the  adoption  of 
positive action measures. 

Other than the interpretation of sexual harassment, there is no relevant case law regarding 
the  interpretation  of  other  related  concepts  by  the  national  courts.  The  sexual  harassment 
found  in  the  cases  concerned  was  verbal  (harassers  gave  comments  about  clothing  and  a 
person’s body, told sexual or sex-based jokes, requested sexual favours or repeatedly asked a 
person  out),  in  some  cases  it  consisted  of  physical  acts  (assault,  impeding  or  blocking 
movement,  inappropriate  touching  of  a  person  or  a  person’s  clothing,  kissing,  hugging, 
patting etc.) and in one case it was visual (emails of an inappropriate sexual nature).  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
In addition to the general provisions of the ERA, the AIPET and the AEOWM dealing with 
equal  pay  indirectly  when  prohibiting  discrimination  on  grounds  of  gender  there  are  also 
some  provisions  in  the  ERA  and  in  the  Act  on  the  System  of  Salaries  in  the  Public  Sector 
(hereinafter the ASSPS) which directly apply the principle of equal pay. In accordance with 
the relevant provision of the ERA workers must be paid equally for equal work and for work 
of equal value regardless of their sex; any provisions in individual employment contracts or 
collective  agreements  or  any  acts  by  the  employer  that  breach  this  principle  are  void. 
Furthermore, the ASSPS lays down the principle of equal pay for male and female workers 
for work in comparable posts and functions in the public sector and provides a legal basis for 
publicly divulging salaries in the public sector. The concept of pay covers salary, composed 
of a basic salary, salary on the basis of work efficiency and benefits, and any other types of 
remuneration.  

According to the ERA companies with more than 10 employees must adopt an internal 
document  on  job  classification.  This  internal  act,  which  systematises  jobs,  determines  the 
internal organisation of work, jobs, hierarchy and the organisation of work in the company. 
For the public sector  the Regulation on Internal Organisation, Post Classification, Posts and 
Titles within the Bodies of the Public Administration and Justice was adopted. 

Slovenian  legislation  does  not  provide  a  definition  of  what  should  be  understood  to  be 
‘work  of  equal  value’.  In  addition,  there  is  no  relevant  case  law  on  this  issue.  Another 
problem  in  Slovenia  is  that  the  data  on  salaries  of  workers  in  the  private  sector  are  not 
considered as personal data and are therefore not available to co-workers. Due to the lack of 
information  on  comparable  jobs  and  the  salaries  of  comparators  it  is  therefore  extremely 
difficult  for  a  potential  victim  of  discrimination  to  start  judicial  proceedings  in  relation  to 
discrimination before the competent court. 

2.2. Access to work and working conditions 
Common bases and premises for ensuring equal treatment of all persons as regards access to 
employment, vocational training and promotion and working conditions are determined by the 
AIPET, whereas concrete provisions are included in the ERA and in the Public Servants Act 
(hereinafter the PSA).  In addition to the general prohibition of discrimination concerning job 
applicants  and  employees  on  the  ground  of  gender  in  the  ERA,  there  are  also some  special 
provisions:  the provision  of  equal  treatment  for job  applicants in  advertising  a vacancy  and 
during  the  selection  procedure;  protecting  workers  from  harassment  and  sexual  harassment 
and  obliging  employers  to  take  measures  to  prevent  harassment,  sexual  harassment  and 
bullying,  and  protecting  workers  against  unfair  dismissal  due  to  gender,  pregnancy  etc.  In 
addition,  the  principle  of  equal  access  to  work  positions  is  defined  by  the  PSA.  These 
provisions cover all workers who have entered into an employment relationship on the basis 
of an employment contract and workers in ‘atypical’ employment such as fixed-term workers, 
temporary  agency  workers,  unemployed  persons  performing  public  works,  part-timers  and 

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home-workers. Volunteers are also specifically protected against discrimination based on the 
Act on Volunteering. 

There are two provisions in the ERA allowing for exceptions to equal treatment. The first 
provides the legal grounds for such exceptions, and the second allows for an exception when 
advertising a vacancy only for men or only for women and when the advertisement is worded 
in a way which indicates that in the recruitment one of the sexes would be given priority, if 
the  recruitment  of  one  particular  sex  constitutes  a  genuine  and  determining  working 
requirement, provided that the objective is legitimate and the requirement is proportionate 

The implementation of the EU legislation is satisfactory. However, in respect of Article 
26  of  the  ERA,  prohibiting  an  employer  from  requiring  that  the  applicant  provides 
information on his/her family and/or marital status, pregnancy and family planning, Slovenian 
law goes even further than required by European law. 

2.3. Occupational pension schemes 
According to the new pension reform of 2013, occupational insurance is obligatory for people 
performing particularly hard work and work which is harmful to health or work which cannot 
be performed successfully after a certain age. Occupational insurance is the insurance where 
employer contributions are being collected into accounts of the insured persons, so that after 
retiring they can obtain a supplementary pension and other rights deriving from the insurance. 
In  addition,  persons  included  in  the  compulsory  statutory  pension  insurance  scheme  or 
persons  already  exercising  rights  deriving  from  this  insurance,  may  join  the  supplementary 
insurance  scheme.  Supplementary  insurance can  be collective,  where  premiums  are fully  or 
partially paid by the employer, or individual, where premiums are paid by the insured person. 
This is the insurance where the insured persons pay amounts into their own accounts, so that 
after  retiring  they  can  obtain  a  supplementary  pension  and  other  rights  deriving  from  the 
insurance.  Insurance  conditions  set  out  in  the  pension  scheme  and  the  conditions  for  the 
acquisition of rights under the supplementary insurance shall not differ in respect of gender or 
any other personal circumstance. 

According to exceptions allowed by EU Directives, the supplementary pension from the 
supplementary insurance is calculated with the application of adequate actuarial calculations 
which consider the  life expectancy  of  the insured  person  on the  basis  of  adequate  mortality 
tables.  

3. Pregnancy and maternity protection, parental leave and adoption leave 

The  ERA  contains  some  general  provisions  regarding  the  right  to  parental  leave,  the 
obligation  to  inform  an  employer  of  the  commencement  of  parental  leave,  how  it  will  be 
distributed  and  the  benefits  during  periods  of  leave.  But  the  most  important  provisions  are 
found in the Parental Care and Family Benefits Act (hereinafter the PCFBA-1). According to 
the newly adopted PCFBA-1 there are three different types of parental leave: maternity leave,  
parental  leave  and  paternity  leave.  Female  workers  are  entitled  to  a  period  of  full-time 
maternity  leave  of  105  days,  of  which  15  days  are  compulsory.  Furthermore,  each  of  the 
parents has a right to a parental leave of 130 days, of which a mother may transfer 100 days to 
the father and 30 days are non-transferable. The father may transfer all of his 130 days to the 
mother. It can be exercised directly after the end of maternity leave to take care of the child. 
However, part of the parental leave, with a maximum of 75 days, can be transferred and used 
until the child finishes the first year of primary school. Paternity leave of 30 days is granted to 
the father on a non-transferable basis, of which 15 days must be used before the baby is six 
months  old  and  15  days  before  the  child  finishes  the  first  year  of  primary  school.  The 
adoptive parents or the persons to whom the child has been entrusted for raising and nursing 
for the purpose of adoption are entitled to the same parental leave as birth parents, until the 
child  finishes  the  first  year  of  primary  school.  Adoption  leave  therefore  is  not  a  separate 
category of leave but has been combined with parental leave. During these periods of leave 
insured persons are entitled to benefits which are equal to 100 % (maternity benefit) or 90 % 
(parental  benefits  and  paternity  benefits)  of  their  average  salary  over  the  12  months 

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leave, 
immediately prior to the date on which the benefit was claimed.   During  maternity 
parental leave and paternity leave workers remain employed under the terms of the existing 
employment  agreement  and  are  therefore  generally  entitled  to  return  to  the  same  job  at  the 
end of the leave according to Article 186 of the amended ERA.526   

Concerning  health  protection  at  the  workplace  for  pregnant  workers  and  workers  who 
have recently given birth or are breastfeeding and leave from work for antenatal examinations 
the Regulation on the protection of health at the workplace of pregnant workers and workers 
who have recently given birth or are breastfeeding is relevant. It contains provisions on the 
assessment  of  any  risk  to  the  safety  or  health  and  any  possible  effects  on  the  pregnancy  or 
breastfeeding of the workers concerned, and on measures and actions to be taken with respect 
to the health and safety at work based on the results of the assessment. In addition, it defines 
cases  in  which  exposure  is  prohibited  and  entitles  female  workers  to  time  off  for  antenatal 
examinations.  

Two  provisions  of  the  ERA  prohibit  dismissals.  The  first  is  a  general  provision  and 
prohibits  dismissal  due  to  taking  sickness  or  parental  leave.  The  second  is  a  provision 
providing  special  protection  against  the  dismissal  of  women  during  pregnancy  and 
breastfeeding and parents on full-time parental leave. 

In  recent  years,  there  has  been  an  increase  of  case  law  regarding  pregnancy  and 
maternity. The majority of cases deal with unlawful dismissal on account of pregnancy and 
breastfeeding. In addition, women often report cases where their fixed-term contracts are not 
renewed after they get pregnant. Unfortunately, not many of these cases have been brought to 
court since it is difficult to prove that the reason that a fixed-term contract is not renewed is 
connected to pregnancy or maternity.    

In  addition  to  the  above-mentioned  gap,  Slovenian  provisions  go  further  than  what 
European law requires, mostly because maternity and parental leave are longer and benefits 
during their duration are higher than the European minimum required. 

4. Statutory schemes of social security 

The social security of Slovenian citizens and others is above all ensured by compulsory social 
security schemes (the health insurance scheme, the pension and invalidity insurance scheme, 
the unemployment insurance scheme and the social assistance scheme). Particular insurance 
schemes are regulated by various laws (the Health Protection and Insurance Act, the PIIA, the 
Labour  Market  Regulation  Act  and  the  Social  Security  Act)  which  all  determine  rights  and 
obligations for both genders equally.  

The  new  PIIA  no  longer  excludes  gender  equality  in  relation  to  the  determination  of 
different  conditions  for  the  acquisition  of  old-age  and  invalidity  pension  as  regards 
pensionable  age  and  the  completion  of  the  pension-qualifying  period.  The  pensionable  age 
has been increased to 65 and the pension-qualifying period to 40 years. Both conditions will 
be equal for both genders after the transitional period, in 2018. 

5. Self-employed persons 

The  Slovenian  Companies  Act  and  the  Institutes  Act  are  neutral  as  regards  gender  and 
therefore provide equal opportunities for women and men. The relevant EU directive is also 
well  implemented  in  the  social  security  area,  where  self-employed  persons  and  helping 
spouses  are  covered  by  mandatory  social  security  schemes.  Self-employed  persons  and 
helping spouses are also covered by the mandatory parental care insurance and are therefore 
entitled  to  maternity  and  parental  leave  and  benefits  if  they  engage  in  an  independent 
agricultural activity in the Republic of Slovenia as their sole or principal occupation and are 
already included in the mandatory pension and disability insurance scheme. 

Slovenia completely fulfils the requirements of EU law regarding self- employed.  

526  Employment Relationship Act, Official Gazette of the Republic of Slovenia, Nos 22/2013, 78/2013. 

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6. Goods and services 

Directive 2004/113/EC has been transposed by the AIPET, the Insurance Act (hereinafter the 
IA) and the Consumers Protection Act (hereinafter the CPA). The AIPET provides for equal 
treatment irrespective of gender in the access to and supply of goods and services, which are 
available  to  the  public,  including  housing  and  their  supply.  The  IA  provides  for  the  equal 
treatment of all insured persons and prohibits differences in insurance premiums and benefits 
on  the  grounds of  sex,  maternity  and  pregnancy  in  general. The  CPA  obliges  enterprises  to 
sell goods and provide services to all consumers on equal conditions. 

Exceptions are provided for in the AIPET and the IA. The AIPET provides a legal basis 
for  allowing  different  treatment  based  on  gender  regarding  insurances  and  related  financial 
services.  However,  according  to  the  newly  adopted  amendments  to  the  IA,  insurance 
companies  may  in  relation  to  life  insurances,  accident  and  health  insurances  take  into 
consideration  the  personal  circumstance  of  gender  in  the  determination  of  premiums  and 
benefits in general only if this does not lead to differentiation at the individual level. 

The  implementation  of  Directive  2004/113/EC  is  satisfactory,  although  the  relevant 
paragraph in the AIPET providing for equal treatment in the access to and supply of goods 
and services should be concretised. In particular, the same term for ‘goods’ could be used in 
directives  and  laws.  The  word  ‘dobrina’  is  used  for  ‘goods’    in  the  AIPET,  and  the  word 
‘blago’ is used in the CPA. However, the word ‘blago’ could be used to follow the wording 
from the Directive 2004/113/EC. In the view of the expert this differentiation in wording is 
not problematic, but it should be noted that the wording should not differ from the translation 
of the Directive.  

7. Enforcement and compliance aspects 

Concerning victimisation, the ERA and the AIPET state that a victim of discrimination and a 
person assisting a victim of discrimination must not be subjected to adverse consequences due 
to his/her actions. 

As regards the burden of proof the ERA states that if an applicant or a worker in a dispute 
alleges facts from which it may be presumed that there has been discrimination, it is up to the 
respondent to prove that there has been no breach of the principle of equal treatment. 

In  case  of  a  breach  of  the  prohibition  of  discrimination  an  administrative  fine  may  be 
imposed on an employer and some criminal sanctions may also be imposed. Moreover, access 
to  the  courts  is  safeguarded  as  well.  A  worker  or  a  rejected  applicant  may  request  judicial 
protection before the labour court and claim continuation of his/her employment including all 
rights deriving from the employment contract, reinstatement to a former position, payment of 
social security  contributions  and salary  with  statutory  interest,  reimbursement  of  legal costs 
etc. In addition, a worker may claim damages arising from unlawful acts, actions or omissions 
pursuant to the general rules of civil law. Damages are not limited in the private sector, but 
are limited for job applicants in the public sector. For this reason the implementation of EU 
law might not be satisfactory. 

Access to the courts is only ensured for alleged victims of discrimination. Interest groups 
and  other  legal  entities  are  excluded.  All  the  above-mentioned  remedies  and  sanctions  in 
Slovenia are effective, proportionate and dissuasive. 

The  Slovenian  body  aiming  to  create  equal  opportunities  and  conditions  for  the  equal 
representation of both genders in all areas of social life is the Service for Equal Opportunities 
(hereinafter the Service) operating within the Ministry of Labour, Family and Social Affairs. 
The  ministry  also  employs  the  Advocate  for  the  Principle  of  Equality  (hereinafter  the 
Advocate) who hears cases of alleged discrimination. The Service and the Advocate are not 
independent, which is not in accordance with the requirements of EU law. 

A collective agreement binds the parties to that collective agreement or its members and 
is  therefore  valid  for  all  persons  employed  by  an  employer  or  employers  to  whom  the 
collective agreement applies. The validity of the collective agreement or part thereof may be 
extended to all employers in an activity or activities regarding which the collective agreement 

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has  been  concluded.  Since  collective  bargaining  is  of  great  importance  and  collective 
agreements  are  generally  applicable  and  have  a  legal  status  which  is  similar  to  legislation, 
they should deal with equality issues more often. So far, however, gender equality provisions 
are  rare  and  mostly  deal  with  the  neutral  use  of  expressions  for  a  worker  in  the  masculine 
grammatical  gender,  the  prohibition  of  discrimination,  damages,  and  the  reconciliation  of 
work and family life. 

8. Overall assessment 

In  order  to  become  a  member  of  the  EU,  Slovenia  first  made  a  detailed  analysis  of  the 
national legislation in force in all areas of the law prior to accession. Consequently a major 
part of the legislation was adjusted, revised or newly adopted in order to implement the EU 
gender  equality  acquis.  As  is  now  evident,  overall  implementation  seems  satisfactory.  In 
some  aspects,  Slovenian  law  even  goes  further  than  what  EU  requires,  for  example  in 
providing  for  longer  maternity  and  parental  leave  and  higher  benefits  during  leave,  or  by 
prohibiting  an  employer  from  requiring  certain  information  from  the  applicant.  However, 
there are some gaps as well. For example, provisions that would guarantee the right to return 
to the same or equivalent job after returning from leave are lacking, the concept of work of 
equal  value  is  not  defined,  the  provision  on  the  implementation  of  the  Goods  and  Services 
Directive in the AIPET is too general, the amount of compensation in the PSA is limited and 
the Service and the Advocate are not independent. In addition, there is almost no litigation on 
equality issues. 

SPAIN – María Amparo Ballester Pastor 

1. Implementation of central concepts  

The definition of central concepts related to sex discrimination can be found in Law 3/2007 of 
22 March 2007, on effective equality between women and men.527 This Law is applicable in 
all contexts, especially in political, civil, labour, socio-economic and cultural areas. 

The  Spanish  concepts  of  direct  and  indirect  discrimination  on  grounds  of  sex  can  be 
found  in  Article  6  of  Law  3/2007,  which  essentially  reproduces  the  same  concepts  as 
contained in Directive 2006/54/EC. In 1991 the Spanish Constitutional Court recognised the 
application  of  the  concept  of  indirect  discrimination  in  relation  to  a  remuneration  system 
contained in a collective agreement that did not adequately value the conditions in which the 
jobs  done  mostly  by  women  were  developed.528  More  recently,  the  concept  of  indirect 
discrimination  has  been  applied  by  the  Constitutional  Court  in  relation  to  the  pejorative 
treatment given by the social security system to part-time workers.529 

The Spanish concepts of gender-related harassment and sexual harassment are contained 
in  Article  7  of  Law  3/2007.  In  contrast  to  the  concepts  contained  in  Directive  2006/54/EC, 
Spanish  regulations  do  not  expressly  require  that  harassment  should  be  non-desired 
behaviour. However, the omission from Spanish law of the ‘undesired’ nature of harassment 
does not make much difference, because if this behaviour creates an intimidating, degrading 
or offensive situation, it will be equally ‘undesired’ by the victim. The Spanish Constitutional 
Court has interpreted that certain conduct may be considered as sexual harassment although 
there  is  no  expressed  and  categorical  opposition  on  the  part  of  the  victim,  if  there  is  some 

527  http://noticias.juridicas.com/base_datos/Admin/lo3-2007.html, accessed 27 May 2014. 
528  Judgment of the Constitutional Court 145/1991 of 1 July 1991, http://www.ugt.es/Mujer/artemisa/sentenciat.pdf, 

accessed 27 May 2014. 

529  Judgment of the Constitutional Court 61/2013 of 14 March 2013, http://www.tribunalconstitucional.es/es/

jurisprudencia/paginas/Sentencia.aspx?cod=20788, accessed 27 May 2014. 

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evidence of the victim’s opposition and always if the behaviour concerned is serious enough 
to be considered offensive.530  

Positive  action  measures  are  recognised  as  legitimate  in  Article  9.2  of  the  Spanish 
Constitution,  which  expressly  refers  to  the  obligation  of  public  authorities  to  remove  the 
obstacles to achieve real equality. Article 11 of Law 3/2007 and Article 17 of the Workers’ 
Statute  (WS531)  both  recognise  the  legal  possibility  of  measures  to  achieve  real  equality 
between women and men. Positive action measures can be implemented in the public as well 
as in the private sector, and can consist of the preferential hiring of women in professions in 
which they are under-represented (quota). However, according to Article 17 of the Worker’s 
Statute,  the  preference  to  female  candidates  will  only  be  applied  when  they  are  equally 
suitable as the male candidate. In this way, Spanish Law respects the CJEU doctrine on quota. 
Outside  a  strictly  labour-related  context,  Law  3/2007  establishes  the  need  for  a  balanced 
presence  of  women  and  men,  which  may  imply  an  imposed  quota,  e.g.  on  the  Board  of 
Directors of trading companies, in the management bodies of the Civil Service or on electoral 
candidate lists. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
A general prohibition of discrimination on grounds of sex is established in Article 14 of the 
Spanish  Constitution.  In  addition,  Article  35  of  the Spanish  Constitution  expressly  refers to 
the right of equal salary without discrimination on the grounds of sex. At ordinary legislation 
level, Article 28 WS states that ‘the employer is obliged to pay the same amount for work of 
equal  value,  rendered  directly  or  indirectly,  whatever  its  nature,  salaried  or  not,  without 
discrimination  on  grounds  of  sex…’.  The  Spanish  Constitutional  Court  has  issued  several 
rulings,532 pointing out that systems of professional classification and promotion must rely on 
criteria which should be neutral and not result in indirect discrimination, e.g. using ‘physical 
effort’  or  ‘arduous  work’  as  a  reason  to  give  a  higher  value  to  men’s  activities.  However, 
there  are  not  many  recent  judicial  rulings  on  equal  pay  in  Spain,  particularly  from  the 
Supreme Court. 

2.2. Access to work and working conditions 
Article 22 bis of the Employment Law533 stipulates that the Public Employment Agency has 
an  obligation  to  monitor  all job  offers  so  that they  do  not  contain  discriminatory  criteria of 
access  to  employment.  Article  22  bis  of  the  Employment  Law  specifically  establishes  that 
employment vacancies referring to one sex must be considered discriminatory, except when 
sex  is  a  genuine  and  determining  occupational  requirement  (the  equivalent  to  the  Spanish 
‘bona fide occupational qualification’).  

The Constitutional Court has declared some cases to be non-constitutional where women 
had been denied access to certain jobs based on the risks that there could be to their health, if 
those working conditions could be equally hazardous to men.534 

The principle of equal access to public-sector employment is contained in general terms 
in  Law  3/2007  on  Equality  (Article  51),  and  in  specific  terms  on  the  Armed  Forces  and 
Official  Security  Forces  (Articles  65  and  67),  including  the  requirement  of  a  balanced 
composition  of  women  and  men  in  staff  recruitment  and  evaluation  bodies.  In  relation  to 
pregnancy, the Supreme Court has ruled that, if possible, the time and/or place of a written 

530  Judgment of the Constitutional Court 224/1999 of 13 December 1999, 

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/3966, accessed 27 May 2014. 
531  http://noticias.juridicas.com/base_datos/Laboral/rdleg1-1995.html, accessed 27 May 2014. 
532  For instance, Judgment of the Constitutional Court 58/1994 of 28 February 1994. 
533  Law 56/2003 of 16 December 2003, available at http://noticias.juridicas.com/base_datos/Laboral/l56-2003.t2

.html#a22, accessed 28 May 2014. 

534  For example, Judgment of the Constitutional Court 229/1992 of 14 December 1992, in relation to the access of 

women to working activities in mines. 

234  

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test  for  the  access  to  a  position  in  the  Public  Sector  must  be  adapted  to  the  particular 
circumstances of a female candidate that has just given birth.535  

Article  24.2  WS  establishes  that  rules  for  promotion  in  companies  must  guarantee  the 
absence of direct or indirect discrimination between women and men. The Spanish Supreme 
Court has established that indirect discrimination in promotion occurs when the criteria used 
for promotion (in this case it was freely designated by the employer) result in women hardly 
ever  reaching  the  highest  positions  in  the  company,  when  the  employer  cannot  prove  that 
there is an objective and reasonable justification for it.536 

2.3. Occupational pension schemes 
Occupational pension schemes are private, free and voluntary and are totally excluded from 
the social security system (which is public and compulsory). They are regulated by collective 
agreements as improvements to the basic statutory schemes and therefore they are not used in 
all  sectors  of  the  economy  or  in  all  companies.  Collective  agreements  must  respect  the 
constitutional  principle  of  equality  and  the  prohibition  of  discrimination  on  grounds  of 
gender. The compromise (pension obligations) established in the collective agreement should 
be guaranteed through collective insurances or occupational pension schemes. All employees, 
including  those  with  a  special  labour  contract,  can  participate  in  the  occupational  pension 
schemes, as one of the principles on which the occupational pension schemes are based is a 
general prohibition of discrimination in the access to them. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Protection  during  pregnancy,  after  a  recent  birth  and  during  breastfeeding  periods  are 
regulated in the Prevention of Labour-Related Accidents Law and includes adapting working 
conditions  or  changing  the  post  or function  when  there is  a  health  or  safety  risk.537  If  these 
measures are not possible or adequate, the employee affected can be put in a situation where 
the contract is suspended (which will last as long as required for health or safety protection) 
on account of risk during pregnancy or natural breastfeeding (for children younger than nine 
months), with the right to a financial benefit equivalent to 100 % of the monthly salary and 
with the right to return to the previously held post. Dismissals during these periods when the 
employment contract is suspended, as well as the dismissal of pregnant women, from the start 
of the pregnancy to the start of maternity leave, will be considered null and void except when 
the reason for the dismissal is a serious fault on the part of the worker or when the dismissal is 
objectively necessary for reasons not linked to pregnancy and maternity, such as economic or 
technical reasons. The Constitutional Court has established that the nullity of the dismissal in 
these  situations  is  automatically  applied  if  there  is  no  just  cause  for  dismissal,  even  if  the 
employer has no knowledge of the pregnancy.538 However, the Constitutional Court has also 
ruled  that  the  dismissal  of  a  pregnant  woman  during  the  probationary  period  is  not 
automatically  considered  null  and  void  if  the  employer  argues  that  he/she  did  not  have 
knowledge of the pregnancy.539  

535 Judgment of the Supreme Court of 14 March 2014, appeal number 4371/2012, http://www.poderjudicial.es/

search/doAction?action=contentpdf&databasematch=TS&reference=7010892&links=%224371/2012%22&opt
imize=20140402&publicinterface=true, accessed 16 May 2014.  

536  Judgment of Supreme Court of 18 July 2011, rec. number 133/2010, http://www.poderjudicial.es/search/do

Action?action=contentpdf&databasematch=TS&reference=6134165&links=%22133/2010%22&optimize=201
11003&publicinterface=true, accessed 29 May 2014. 

537  Law 31/1995 of 8 November 1995, http://noticias.juridicas.com/base_datos/Laboral/l31-1995.html, accessed 

29 May 2014. 

538  Judgment of the Constitutional Court 92/2008 of 21 July 2008, http://hj.tribunalconstitucional.es/HJ/es/

Resolucion/Show/6324, accessed 29 May 2014. 

539 Judgment of the Constitutional Court 173/2013 of 10 October 2013, 

http://www.tribunalconstitucional.es/Documents/NOTA_INFORMATIVA_64_2013/2011-03773STC.pdf, 
accessed 27 May 2014.  

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  Maternity leave lasts for 16 continuous weeks (with two further weeks for each child, in 
the event of multiple births), 6 of which must be taken by the mother immediately following 
the birth. Maternity leave can be taken part time if there is an agreement with the employer or 
if  this  right  is  referred  to  in  collective  agreement.  If  both  parents  work,  the  mother  may 
choose to cede part of the remaining leave period (10 weeks) to the other parent. If the mother 
dies, the father can have the full maternity leave (16 weeks) even if the mother did not work. 
In cases of adoption or fostering of a child younger than six, the leave will be 16 weeks as 
well. The same maternity leave will apply if the adopted or fostered child is older than six but 
she/he has special difficulties regarding adaptation to the new social environment. Employees 
who  make  use  of  these  leave  periods  for  birth  or  adoption  will  be  entitled  to  remuneration 
equivalent  to  100 %  of  their  monthly  salary,  whenever  the  legal  requirements  are  met 
(basically, a minimum period of previous working time is required, which varies depending 
on the age of the mother). Public-service employees basically have the same rights.  

Paternity leave, independent of whether maternity leave is shared with the mother, lasts 
for  13  continuous  days,  extended  by  2  more  days  for  each  child,  for  adoption  or  fostering, 
with the right to 100 % of the monthly salary. Although this leave is intended for the father, 
the provision is drafted in neutral terms so as to be compatible with family structures where 
both parents are of the same sex. For public-service employees, the leave period is 15 days. 
The  aim  of  Law  3/2007  (which  first  introduced  paternity  leave  in  Spain)  was  to  gradually 
extend  the leave  to  4  weeks,  over  a  6-year  period. However,  the  promised extension  of  the 
paternity leave has been postponed year after year.  

There are several kinds of parental leave in Spanish legislation. First, either of the parents 
with children younger than nine months (including adopting and fostering parents) have the 
right  to  paid  leave  of  an  hour  a  day.  Although  this  is  called  ‘breastfeeding  permission’  its 
objective is not only to breastfeed but, more generally, to take care of the child (Article 37.4 
WS). Second, workers have the right to unpaid leave that may last until three years after the 
child’s  birth  or  after  the  official  adoption  or  fostering  date.540  Third,  parents  of  children 
younger than 8 can ask for a reduction in working time, in which case their salary is reduced 
proportionally.541 Fourth, parents can ask for a reduction in working time for the purpose of 
taking care of a child that is seriously ill, in which case the social security system guarantees 
that the worker receives 100 % of his/her salary.542 If dismissal takes place during any of the 
parental  leaves  described  above,  the  dismissal  will  be  considered  null  unless  there  is  a  just 
cause for it (in the  same  terms  as  those  that  apply  to  pregnancy  or  maternity  leave).543  The 
period of nine months after birth is also protected by the nullity of a dismissal. 

There  are  several  aspects  in  Spanish  law  that  could  still  be  in  violation  of  the  parental 
leave  Directive.  First,  Spanish  legislation  does  not  guarantee  time  off  from  work  on  the 
grounds of force majeure, as required by Clause 7 of Directive 2010/18/EU, because there is 
no  general  permission  applicable  in  cases  of  sickness  or  accident  making  the  immediate 
presence of the worker indispensable. Article 37.3 WS establishes permission for a two-day 
leave of absence if a relative has a serious illness or requires a surgical procedure, but there 
are other situations that could require the presence of the parents on grounds of force majeure 
but  that  are  not  considered  by  Spanish  legislation.  Second,  Spanish  legislation  could  be  in 
violation of Clause 6 of Directive 2010/18/EU because nothing has been established in order 
to  guarantee  that  employers  shall  consider  and  respond  to  parents’  requests  for  changes  to 
working  hours  and/or  patterns  for  a  set  period  of  time  when  they  return  to  work  after  a 
parental leave.  

540  Article 46.3 WS.  
541  Article 37.5 WS.  
542  Article 135 General Law of Social Security, Legislative Royal Decree 1/1994 of 20 June 1994, 
http://noticias.juridicas.com/base_datos/Admin/rdleg1-1994.t2.html#c8, accessed 29 May 2014. 

543  Article 108 of the Law regulating social jurisdiction, Law 36/2011 of 10 October 2011, 

http://www.boe.es/buscar/act.php?id=BOE-A-2011-15936&tn=2&p=20120714, accessed 29 May 2014. 

236  

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4. Statutory schemes of social security 

Workers that have to take care of dependents may have more problems when trying to accrue 
contributory pensions, so Spanish legislation has established the non-rebuttable presumption 
that during long-term parental leave (called excedencia) there has been effective contribution 
to the system. It has also been established that during the first two years of the time reduction 
to take care of children, the contribution to the system will be considered as if the work had 
been performed full time.544 There are other situations in which contribution to the system is 
considered applicable, even if no work has effectively been performed, in the event of birth, 
adoption or foster care of children.545 A non-contributory maternity leave is established by the 
social security system if a working mother does not comply with the minimum requirements 
that apply to the contributory maternity leave.  

In general, the Spanish social security system complies with Directive 79/7. However, the 
existence of indirect discrimination in Spain was detected by the CJEU in Elbal in relation to 
the requirements to accrue contributory pensions that apply to part-time workers.546 Spanish 
legislation  has  been  changed  in  accordance  with  the  CJEU’s  judgment,  so  currently  the 
minimum time of work required for the access to pensions must be reduced proportionately 
depending on the duration of the working day of each part-time worker.547 

5. Self-employed persons 

Self-employed persons have access to maternity leave, paternity leave and sick leave if there 
are risks during pregnancy or breastfeeding. There are some particularities (for instance, self-
employed  persons  cannot  take  part-time  maternity  leave)  but,  in  general,  the  legislative 
treatment is quite similar to that established for employees.  

 Benefits have been established to promote that both spouses working in the same family 

business are included in the social security system.548 

6. Goods and services 

Directive  2004/113/EC  has  been  implemented  through  Law  3/2007  on  equality  between 
women and men. The Directive can be said to have been correctly implemented, at least from 
a formal point of view, as the most relevant provisions of the Directive have been transposed 
literally. Spanish legislation expressly establishes that the use of sex as an actuarial factor in 
the  calculation  of  premiums  and  benefits  must  not  result  in  differences  in  individuals’ 
premiums and benefits (following the Test Achats case).549 The Directive’s impact has been 
rather limited despite its proper implementation. This is probably due to the lack of initiatives 
on behalf of the authorities, the lack of a specific regulation of the rights and obligations in 
the various areas and in contractual agreements, as well as the lack of court claims concerning 
specific discrimination issues. 

7. Enforcement and compliance aspects 

Article 96550 of the Law Regulating Social Jurisdiction establishes the reversal of the burden 
of  proof  in  a  manner  similar  to  Article  7  of  Directive  97/80/EC.  According  to  that  Article, 

544  Article 180 General Law of Social Security. 
545  Additional Provision 44 and Additional Provision 60 of General Law of the Social Security System. 
546  Case 385/11 Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de 

la Seguridad Social (TGSS) [2012] ECR n.y.r. 

547  Royal Legislative Decree 11/2013, of 2 August 2013.  
548  Benefits established by Law 3/2013 of 6 July 2013. 
549  Benefits established by Law 3/2013 of 6 July 2013. 
550  Article 96 of the Law regulating social jurisdiction, Law 36/2011 of 10 October 2011. 

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when  evidence  of  a  violation  is  presented,  the  defendant  must  demonstrate  the existence  of 
reasons unrelated to the intention to discriminate to objectively justify the conduct. 

In equal treatment cases, the persons so affected have standing before the courts and, if 
the  victim  so  authorises,  so  do  trade  unions  and  associations  for  the  promotion  of  equality. 
When the victims are a group of unspecified persons or if they are difficult to determine, the 
following  entities  will  have  standing  before  the  courts:  public  entities  that  have  as  an 
objective  the  equality  between  women  and  men,  most  representative  unions  and  national 
associations that have amongst their objectives the equality between women and men.551   

If  a  dismissal  takes place on  grounds  of  sexual  discrimination,  the  employer’s decision 
will  be  declared  null  and  void,  with  the  immediate  effect  of  readmission  to  the  post  and 
according to the same conditions as previously applied. All decisions taken by the employer 
which amount to victimisation of an employee for making an internal complaint or submitting 
a  judicial  claim  seeking  compliance  with  the  principle  of  equal  treatment  and  non-
discrimination, will be considered as discrimination on the grounds of gender and the effects 
will be null and void.  

Any  sexual  harassment,  discrimination  and  harassment  on  grounds  of  gender  is 
considered a serious transgression. The fine will be between EUR 6 251 to EUR 187 515.552
The  role  of  collective  agreements  in  the  development  of  equality  issues  was  not  really 
relevant before the enactment of Law 3/2007. Since then, there is a general obligation for the 
social  partners  to  negotiate,  in  collective  agreements,  measures  promoting  the  equality  of 
treatment and opportunities for women and men or equality plans in those companies required 
to implement them. 

The  Women's  Institute  is  a  theoretically  autonomous  body  attached  to  the  Ministry  of 
Health,  Social  Services  and  Equality  of  Spain.  Its  function  is  the  promotion  and 
encouragement  of  conditions  that  produce  social  equality  of  the  sexes  and  allow  women's 
participation in political, cultural, economic and social life.553  The Women’s Institute is part 
of  Spain’s  central  Government,  subject  to  the  principle  of  administrative  hierarchy;  so  its 
independence is not really guaranteed.  

8. Overall assessment 

Law 3/2007 on effective equality between women and men mostly fulfils the basic standards 
of EU gender discrimination law. However, Spanish legislation might not meet the standards 
of  the  European  Union  in  the  following  respects:  a)  the  access  to  retirement  of  part-time 
workers currently still contains indirect sex discrimination, as has been established in Elbal, 
until  legislation  is  amended;  b)  time  off  from  work  on  the  grounds  of  force  majeure  is  not 
guaranteed,  as  required  by  Clause  7  of  Directive  2010/18/EU,  because  there  is  no  general 
permission applicable in cases of sickness or accident that makes the immediate presence of 
the worker indispensable; c) Spanish legislation could be in violation of Clause 6 of Directive 
2010/18/EU because nothing has been established in order to guarantee that employers shall 
consider and respond to parents’ requests for changes to working hours and/or patterns for a 
set period of time when they return to work after a parental leave. 

551  Article 11 of the Law of Civil Procedure, Law 1/2000 of 7 January 2000, http://noticias.juridicas.com/

base_datos/Privado/l1-2000.l1t1.html#a11b, accessed 30 May 2014. 

552  Article 8.12 of the Law of Transgressions and Fines in Labour-Related Areas, Legislative Royal Decree 

1/1995 of 4 August 1995, http://noticias.juridicas.com/base_datos/Laboral/rdleg5-2000.html#a8, accessed 
30 May 2014. 

553  http://www.inmujer.es/elInstituto/conocenos/home.htm, accessed 30 May 2014. 

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SWEDEN – Ann Numhauser-Henning 

1. Implementation of central concepts 

As of 1 January 2009 the existing non-discrimination legislation in Sweden was ‘merged’ into 
the  2008:567  Discrimination  Act,  covering  discrimination  on  the  grounds  of  gender, 
transsexual  identity/expression,  ethnicity,  religion  and  other  beliefs,  sexual  orientation, 
disability and age.  

The 2008 Discrimination Act contains a general set of definitions in its Chapter 1. The 
Act  is  truly  ‘horizontal’  in  that  the  general  definitions  cover  all  grounds  of  discrimination 
within the scope of the Act, which subsequently stipulates the prohibitions of discrimination 
in employment, education, etc., area by area.  

Direct  discrimination  is  to  disfavour  somebody  by  treating  him  or  her  less  favourably 
than  someone  else  is  treated,  has  been  treated  or  would  have  been  treated  in  a  comparable 
situation  if  the  disadvantage  is  connected  to  sex,  transsexual  identity/expression,  ethnicity, 
religion or other belief, disability, sexual orientation or age. 

Indirect discrimination is to disfavour somebody by applying a provision, a criterion or a 
method  of  approach  that  appears  to  be  neutral  but  which  in  practice  especially  disfavours 
persons  of  a  particular  sex,  unless  the  provision,  criterion  or  method  can  be  objectively 
justified based on a reasonable goal and the means are appropriate and necessary in order to 
achieve this goal.  

Instructions to  discriminate  are defined  as  orders  or  instructions  to  discriminate  against 
an individual as described in the previous paragraphs of Section 4 that are given to someone 
who  is  either  in  a  subordinate  or  dependent  position  relative  to  the  person  who  gives  the 
orders or instructions or who has undertaken to act on that person’s behalf. 

Harassment is defined as conduct that violates a person’s dignity and that is associated 
with  any  one  of  the  grounds  covered  by  the  Act,  whereas  sexual  harassment  is  defined  as 
conduct of a sexual nature that violates a person’s dignity. 

Positive  action  (positiv särbehandling) is  not a  concept  used  by  the  Swedish legislator. 
Chapter  3  of  the  2008  Discrimination  Act  deals  with  what  is  called  ‘active  measures’  in 
working life and education, respectively. Here it concerns proactive measures such as equality 
plans,  etc.  Affirmative  actions  are  dealt  with  in  Chapter  2  on  the  bans  of  discrimination. 
According  to  Chapter  2  Section  2.2,  the  prohibition  against  discrimination  in  working  life 
does  not  apply  ‘if  the  treatment  of  the  person  concerned  is  part  of  an  effort  to  promote 
equality [between men and women] in working life and is not a matter of applying pay terms 
or other terms of employment’. A later section on education contains a similar permissive rule 
related  to  recruitment  in  forms  of  education  other  than  basic  schooling.  Also  the  bans  on 
discrimination  in  political  labour-market  activities  and  professional  access  and  activities 
contain  an  opening  for  efforts  to  promote  equality  between  the  sexes,  whereas  the  rule  on 
membership of certain organisations permits benefits for members of a certain sex provided 
this is a similar effort to promote equality. 
In the expert’s opinion, the implementation of central concepts is satisfactory.  

2. Equal pay and equal treatment at work 

2.1 Equal pay 
The  2008  Discrimination  Act  does  not  contain  an  express  ban  on  pay  discrimination.  Pay 
discrimination is implicitly and tacitly covered by the ban on discrimination in working life 
including pay and other conditions in Chapter 2 Section 1. In the application of the law, the 
parties and the courts must interpret the concept of pay in accordance with the case law of the 
CJEU, and,  to  the  best  of the expert’s  knowledge,  they  do  so  in  a satisfactory  manner. The 
concept of equal pay is dealt with, however, in relation to the requirement of periodical action 
plans for equal pay in Chapter 3 of the 2008 Discrimination Act: ‘Work is to be considered 
equal in value to other work if, based on an overall assessment of the nature of the work and 
the  requirements  imposed  on  the  worker,  it  may  be  deemed  to  be  of  similar  value. 

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Assessments  of  work  requirements  shall  take  into  account  criteria  such  as  knowledge  and 
skills,  responsibility  and  effort.  When  the  nature  of  the  work  is  assessed,  particular  regard 
shall be taken of the working conditions’. 

There is no express legislation on the justification of pay differences. A number of cases 
have been heard by the (Swedish Supreme) Labour Court, however. The negative outcome of 
most  of  these  cases  has  been  criticised  claiming  that  the  Labour  Court  has  too  willingly 
accepted  ‘the  market  argument’  presented  by  employers  as  an  excuse  for  pay  differentials, 
thereby failing to live up to the standards of EU law. Nevertheless, some of these cases reflect 
important progress as regards the possibilities to initiate legal claims based on a comparison 
of work of equal value. Here only two landmark cases will be mentioned. Labour Court case 
1996 No. 41 concerned Örebro County and the health sector or, to be more exact, the question 
of  whether  the  pay  of  a  midwife  was  discriminatory  as  compared  to  that  of  a  hospital 
technician. The Labour Court did not exclude the possibility that the work of a midwife and a 
hospital technician could be compared and found to be of equal value, but in the case at stake 
it  did  not  find  the  method  used  by  the  Equal  Opportunities  Ombudsman  to  be  sufficient  to 
prove  that  this  was  the  case.  No  discrimination  was  found  to  be  at  hand.  Also  a  somewhat 
later  case  –  Labour  Court  2001  No.  13  –  concerned  Örebro  County  and  the  health  sector. 
This,  too,  concerned  alleged  pay  discrimination  of  a  midwife  as  compared  to  a  hospital 
technician. In this case the midwife and the technician were found to perform work of equal 
value  following  an  assessment  in  terms  of  knowledge  and  skills,  responsibility,  effort  and 
working conditions (now part of the definition of work of equal value according to the 2008 
Discrimination  Act).  A  prima  facie  case  of  pay  discrimination  was  therefore found  to  be  at 
hand. The Labour Court, however, accepted the employer’s ‘excuse’ that the higher wages of 
the  technician  were  due  to  market  arguments  –  there  was  an  alternative  labour  market  for 
technicians  with  significantly  higher  wages,  an  acceptable  motive  to  adjust  the  wages  of 
technicians to a somewhat higher level. The Court therefore ruled that no discrimination had 
taken  place.  (Compare  also  the  ‘parallel’  Labour  Court  case  2001  No.  76:  a  nurse  and  a 
hospital technician were compared and their work was found to be of equal value, but also in 
this case pay discrimination was finally found not to be at hand). 

It  is  worth  noting  that  the  rules  on  active  measures  include  quite  far-reaching 
requirements  on  periodical  action  plans  for  equal  pay  by  employers  with  25  or  more 
employees. It is also worth mentioning, however, that these requirements were weakened by 
the introduction of the 2008 Act. (Now plans are required every three years as compared to 
every  year  and  the  threshold  as  regards  the  number  of  employees  increased  from  10  to  25 
employees.) 

2.2 Access to work and working conditions 
EU  law  as  regards  working  life  is  mainly  implemented  by  Chapter  2  of  the  2008 
Discrimination  Act.  An  employer  –  whether  in  the  public  or  private  sector  –  is  prohibited 
from  discriminating  against  (1)  an  employee,  (2)  somebody  making  a  request  regarding 
employment or who is applying for employment, (3) somebody applying for or performing a 
practice/training period, or (4) somebody who is available as or acting as a temporary agency 
worker with the employer. These are therefore the persons protected whereas the Act relates 
to any decision made by the employer (or anybody acting on his or her behalf). 

The  Swedish  legislator  has  made  use  of  the  exception  in  Article  2.6  of  Directive 
2002/73/EC. The prohibitions on discrimination do not apply in connection with decisions on 
employment, promotion or training for promotion where a particular characteristic related to 
sex, etc., by reason of the nature of the work or of the circumstances in which it is carried out 
constitutes  a  genuine  and  determining  occupational  requirement  with  a  legitimate  objective 
and the requirement is adequate and necessary for attaining that objective. The bans on gender 
discrimination  in  vocational  training,  etc.,  are  also  implemented  by  Chapter  2  Section  5  on 
education  whereas  Chapter  2  Sections  9,  10  and  11  implement  the  discrimination  bans 
regarding  political  labour-market  activities,  professional  activities  and  membership  of  trade 
unions and other professional organisations, respectively. 

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2.3 Occupational pension schemes 
There is no express legislation as regards occupational schemes and gender discrimination. In 
accordance with the case law of the CJEU such private schemes (i.e. apart from public social 
security  pension  schemes)  are  seen  as  pay  and  are  therefore  covered  by  the  general  ban  on 
discrimination  in  working  life  described  above.  Generally  speaking,  occupational  pension 
schemes are known to be gender neutral in their design.  

3. Pregnancy and maternity protection, parental leave and adoption leave  

The 1995 Parental Leave Act contains the central rules on parental leave including maternity 
and  paternity  leave.  The  1995  Act  stipulates  the  right  to  leave  of  absence  in  relation  to  the 
employer whereas the right to pay during such leave is covered by the general social security 
parental leave benefit scheme (regulated in the 2010 Social Insurance Code). However, ‘extra 
parental  wages’  paid  by  the  employer  according  to  a  collective  agreement  are  especially 
important to large groups of salaried employees since there is an upper ‘ceiling’ in the social 
security benefits scheme. 

There  are  six  different  types  of  leave:  maternity  leave  of  fourteen  weeks  before  and/or 
after giving birth and during breastfeeding, full leave with or without parental benefits until 
the  child  is  18  months  old  (or  during  18  months  following  adoption),  partial  leave  with 
parental  benefits,  partial  leave  without  parental  benefits,  leave  with  temporary  parental 
benefits for the sake of caring for a sick child and full or half-time leave with municipal care 
support. 

Parental benefits are paid during 480 days for each child (also adopted) until the child is 
12 years old (however, only 96 of these 480 days can be taken after the child is 4 years old): 
390 days at sickness benefits level and another 90 days at the (guaranteed) minimum level. 
Sixty days  at  sickness  benefits  level  are  non-transferable  between  the  parents.  Parental 
benefits at sickness benefits level are income related and therefore require prior employment, 
but  there  is  also  a  basic  guaranteed  level  in  the  parental  benefits  scheme  for  parents  not 
complying with this condition. The scheme is extremely flexible in that it is also possible to 
draw partial benefits during a considerable amount of days until the child is 12 years old. It is 
thus possible to draw even only one eighth of leave or benefits per day, if so desired by the 
parents. This means the parents would receive a reduced working time by one hour per day 
(one ‘benefit’ day would therefore last for eight working days).   

Parental leave with temporary parental benefits is provided with a maximum of 60 days a 
year  per  child  when  caring  for  a  sick  child.  Such  leave  is  also  provided  as  paternity  leave 
during 10 days after the birth of a child. Following the adoption of a child the parents have 10 
such  days  of  leave  together.  On  1  July  2008  a  care  support  of  EUR  319  (SEK  3 000)  per 
month was introduced. Such support is provided at municipality level, but the introduction of 
such benefits is voluntary.  
  Maternity leave is always granted for seven weeks prior to and seven weeks after giving 
birth as well as when breastfeeding – two weeks of such leave are compulsory. A parent is 
also always entitled to full leave for the care of a child until the child is 18 months old (or 
within 18 months of adoption), irrespective of whether the parent receives parental benefits. 
There  is  also  always  a  right  to  partial  leave  without  parental  benefits  in  the  form  of  a 
reduction  in  normal  working  hours  by  up  to  one  quarter  for  the  care  of  a  child  until  it  is 
8 years  old.  Additionally,  there  is  always  a  right  to  parental  leave  whenever  one  receives 
benefits from the social security parental benefits scheme or municipal care support.  

The Parental Leave Act contains rather detailed rules on notice and decisions regarding 
leave.  There  is  a  general  prohibition  on  unfair  treatment  (missgynnandeförbud)  for  reasons 
connected  with  parental  leave  under  the  Act  covering  protection  against  dismissal  on  the 
grounds of maternity, paternity and parental leave as well as deteriorated working conditions. 
There is also an express right to discontinue the leave and resume working to the same extent 
as prior to the period of leave. Maternity leave is not only covered by this general prohibition 
of  unfair  treatment  but  is  also  –  as  is  pregnancy  –  covered  by  the  ban  on  direct  gender 
discrimination in Chapter 2 Section 1 of the 2008 Discrimination Act. This is, however, not 

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clearly  stated  anywhere  but  is  a  matter  of  interpreting  the  case  law  of  the  CJEU  treating 
discrimination related to pregnancy and maternity leave as direct discrimination. There is no 
strict  prohibition  against  dismissal  during  pregnancy  or  leave  for  unrelated  reasons,  but  the 
notice period cannot be made effective until the worker is actually back at work.  

The  provisions  on  the  rights  to  leave  clearly  exceed  the  requirements  of  Directive 
2010/18/EU, both with regard to the number of days and in that it provides paternity leave of 
10+60 days. 

4. Statutory schemes of social security 

Chapter  2  Section  14  of  the  2008  Discrimination  Act  implements  Directive  79/7/EEC.  A 
prohibition  on  (among  other  grounds)  gender  discrimination  covers  the  social  insurance 
system  and  related  benefit  systems  including  the  unemployment  insurance  and  the  public 
student aid system. The second paragraph of Section 14 expressly states that the prohibition 
concerning  social  insurance  and  related  benefit  systems  does  not  imply  an  obstacle  to  the 
application  of  remaining  provisions  concerning  widow’s  pensions,  wife’s  supplements  and 
child  allowance  payments.  Generally  speaking,  the  current  public  social  security  pension 
scheme is gender neutral and the express exception rule refers to transitional rules applicable 
to a small group of women.  

5. Self-employed persons 

There  is  a  ban  on  discrimination  in  the  2008  Discrimination  Act  in  connection  with 
qualification,  certification,  authorisation,  registration,  approval  or  similar  arrangements 
including rights to initial financing that are needed or may be of importance in enabling an 
individual to engage in a certain occupation. This ban does not prevent positive action as part 
of  an  effort  to  promote  equality,  however.  There  are  also  prohibitions  on  discrimination  as 
regards  political 
labour-market  activities  and  membership  of  certain  organisations, 
respectively.  All  these  rules  have  implications  for  the  self-employed  in  terms  of  a  ban  on 
discrimination.  However,  the  concept  of  ‘self-employed  person’  does  not  have  a  clear-cut 
meaning in Swedish law. The Swedish concept of an employee is quite broad and may cover 
situations  which  in  an  EU  context  are  considered  to  concern  self-employment  or  helping 
spouses. The rules on discrimination in working life apply to this extent.  

6. Goods and services 

According to the 2008 Discrimination Act, a prohibition on discrimination applies to anyone 
(or his/her representative) who (1) outside private and family life provides goods, services or 
housing for the public, or (2) arranges a public meeting/gathering. There is, however, also an 
express exception for gender discrimination services or housing if the different treatment can 
be justified by a legitimate aim and the means are appropriate and necessary for achieving this 
aim. One example is sheltered housing for women having experienced violence and ‘single-
sex’ housing for students in accordance with the conditions of a donation. Since 21 December 
2012 there no longer is an exception for insurance services, however. In order to implement 
the CJEU’s judgment in the Test-Achats case,554 a new section was introduced into the 2008 
Discrimination Act reading: ‘Where insurance services are concerned there must not be any 
difference between women and men in insurance premiums or insurance compensation for the 
individual  on  the  ground  of  gender-related  factors’.  The  new  rule  only  applies  to  insurance 
contracts entered into after 21 December 2012.  

554  Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres 

[2011] ECR I-00773.  

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7. Enforcement and compliance aspects  

The bans on victimisation in the various directives are implemented by Chapter 2 of the 2008 
Discrimination Act. Section 18 concerns employers and Section 19 other parties covered by 
the different prohibitions on discrimination, and they ban the victimisation of any individual 
because he or she has reported or drawn attention to instances of discrimination or taken part 
in  an  investigation  into  discrimination  as  well  as  rejected  or  accepted  harassment  or  sexual 
harassment by the alleged discriminator. Corresponding rules have long existed but have not 
been the subject of any important case law.  

A general rule on the reversed burden of proof is contained in Chapter 6 Section 3. This 
covers  all  types  of  alleged  discrimination  or  victimisation  within  the  scope  of  the 
Discrimination Act. 

Remedies  and  sanctions  are  regulated  by  Chapter  5  of  the  2008  Discrimination  Act. 
Section 1 introduces a new type of indemnification, ‘discrimination indemnification’, which 
is  exclusive  for  cases  of  discrimination.  Its  function  is  to  compensate  for  the  ‘degradation’ 
caused by any type of discrimination or harassment and to have a preventive effect regarding 
discriminatory  behaviour  in  society.  The  general  aim  of  introducing  this  new  type  of 
indemnification  is  to  make  the  general  courts  change  their  practices  and  award  higher 
indemnification  amounts.  In  the  recent  case  of  Labour  Court  2014  No.  19,  ‘discrimination 
indemnification‘  was  merged  with  punitive  damages  and  set  at  approximately  EUR  5  500 
(SEK 50 000). This was a case where a pregnant woman was not called in for an interview 
regarding a permanent position. Since she was not in a position to really obtain the position at 
issue  the  Court  considered  this  a  ‘less  serious  form  of  discrimination’  with  a  reference  to 
Draehmpaehl.  Indemnification  to  cover  economic  loss  is  additionally  paid  in  the  case  of 
discrimination  or  victimisation  by  an  employer.  Such  indemnification  is  not  possible, 
however, in relation to decisions on appointments or promotions. Here, respect for the ‘hiring 
at  will’  doctrine  in  Swedish  law  impedes  payment  of  economic  indemnification!  Chapter  5 
Section 3 contains a rule on the invalidity of discriminatory decisions or conditions. In cases 
of a discriminatory dismissal the rules on reinstatement in the 1982 Employment Protection 
Act apply. 

The  Equality  Ombudsman  (Diskrimineringsombudsmannen,  DO)  is  the  equality  body 
covering all groups within the scope of the Discrimination Act (Chapter 4). This body is ‘a 
merger’  of  the  former  four  different  ombudsmen,  including  the  Equal  Opportunities 
Ombudsman (Jämställdhetsombudsmannen, JämO). It has the task of monitoring compliance 
with  the  Act  generally,  but  may  also  bring  an  action  on  behalf  of  an  individual  claiming 
discrimination of any type. This requires the consent of the individual in question. The DO 
decides whether there is sufficient reason to bring a claim, e.g. that a ruling in the dispute is of 
importance for the application of the law. The 2008 Act introduced a new possibility, also for 
certain NGOs, to submit an action to court provided that they have the concerned individual’s 
consent. Both the DO’s and the NGOs’ right to bring such an action is secondary to the right 
of any trade union to represent their members. The remedies as regards non-compliance with 
the  rules  on  active  measures  are  fines  and  there  is  a  special  Commission  against 
Discrimination to monitor this at the request of the DO. 

The  rules  on  litigation  are  contained  in  Chapter  6  of  the  2008  Discrimination  Act. 
Alleged  discrimination  in  working  life  is  dealt  with  according  to  the  Labour  Disputes  Act, 
which  means  that  the  Swedish  Labour  Court  rules  in  the  last  –  and  usually  also  the  first  – 
instance.  Only  when  an  individual  who  is  not  a  member  of  any  trade  union  and  is  not 
represented by the DO brings a claim does he or she start out in the general District Court, the 
Labour  Court  serving  as  the  appeal  court.  As  regards  discrimination  in  any  other  area  of 
society, claims are brought in the general court system. 

The  Swedish labour  market  –  both public  and  private  –  is  to  a  great extent  covered  by 
collective  agreements.  However,  there  is  no  such  thing  as  generally  applicable  collective 
agreements;  from  a  legal  point  of  view  collective  agreements  are  only  binding  on  the 
employers/unions  entering  into  them  and  their  members.  On  the  other  hand,  there  is  an 
obligation for the employer bound by an agreement to apply the conditions of the applicable 

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agreement to all employees in the activities covered. Collective agreements are not known to 
contain general regulations on gender discrimination, but frequently address gender as regards 
wage-setting principles, extra wages during parental leave, etc. 

8. Overall assessment  

Generally speaking, the 2008 Discrimination Act implements most of the directives covered 
by  this  report,  including  the  Recast  Directive.  Directives  92/85/EEC  and  2010/18/EU  are 
mainly  implemented  through  the  Parental  Leave  Act.  The  Swedish  legislator  has  taken  a 
rather keen interest in the implementation of EU discrimination regulation in recent years and 
has  even  preceded  EU  law  on  occasion.  Generally  speaking,  the  implementation  of  gender 
law  sufficiently  meets  the  requirements  of  EU  law.  This  also  holds  true  for  the 
implementation of central concepts.  

the  2008  Act.  Moreover, 

Swedish law has been criticised by the Commission, however, as not having included an 
express rule indicating that discrimination related to pregnancy and maternity leave proper is 
regarded  as  sex  discrimination.  Other  gaps  in  the  Swedish  implementation  of  EU  gender 
legislation  have  been  identified  by  the  Commission  as  regards  the  implementation  of 
Directive  76/207/EEC  as  amended  by  Directive  2002/73/EC  in  respect  of  limited  rights  to 
compensation  as  well  as  lacking  rights  for  NGOs  to  represent  alleged  victims.  The 
Government – not necessarily in agreement with the Commission – has remedied these issues 
the  special  ‘discrimination 
through 
indemnification’  can  be  expected  to  result  in  a  welcome  increase  in  the  levels  of 
indemnification. However, a question mark can be placed as regards discrimination in hiring 
and promotion. Even if discrimination is proved, there is no right to the position/promotion as 
such or to compensation for economic loss. Arguably, with regard to transparency, etc., one 
can  also  question  the  method  of  the  2008  Act  to  prohibit  any  discriminatory  decision  in 
working life without expressly mentioning access to employment, etc., in parallel with Article 
3  Directive  2002/73/EC.  This  especially  renders  the  bans  on  discriminatory  pay  and 
for 
occupational  pension  schemes 
pregnancy/maternity as a ground for direct sex discrimination. 

transparent  and 

introduction  of 

is  also 

from 

true 

this 

the 

far 

Swedish  legislation  goes  beyond  the  requirements  of  EU  law  with  its  prohibition  on 
discrimination regarding basic schooling and higher education. The rules on rights to parental 
leave  are  quite  extensive  and  to  a  great  extent  related  to  social  security  benefits,  and  are 
protected  by  a  general  prohibition  on  unfair  treatment  for  reasons  connected  with  parental 
leave.  It  is  also  worth  mentioning  that  according  to  Chapter  2  Section  13  of  the  2008 
Discrimination  Act,  gender  discrimination  is  outlawed  concerning  healthcare  and  social 
services, which goes beyond the requirements of EU law. 

TURKEY – Nurhan Süral 

1. Implementation of central concepts 

The  amended  Article  10  of  the  Constitution  on  equality  allows  for  positive  discrimination: 
Measures taken with this goal in mind cannot be considered as violations of the principle of 
equality.555  Also  by  means  of  an  amendment  to  Article  90  of  the  Constitution  in  2004,556 
ratified  international  agreements  on  fundamental  rights  and  freedoms  including  the  United 
Nations  Convention  on  the  Elimination  of  All  Forms  of  Discrimination  against  Women 
(CEDAW), have been granted priority over national laws.  

555  Law No. 5982, Official Gazette 13 May 2010, No. 27580. This law was approved through a referendum held 

on 12 September 2010. 

556  Law No. 5170, Official Gazette, 22 May 2004, No. 25469. 

244  

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There  is  no  separate  non-discrimination  legislation  in  Turkey.  Article  5  of  the  Labour 
Law  (İş  Kanunu)  is  the  most  extensive  provision  on  the  prohibition  of  discrimination.  This 
Article regulates  the  principle  of  equal treatment,  prohibiting  discrimination  on the  basis  of 
race,  sex,  language,  religion  and  sect,  political  opinion,  philosophical  belief,  colour, 
disability557 or any such considerations.  

The concepts of direct and indirect discrimination, as well as sexual harassment are used 
in labour and criminal laws but have not been defined. No distinction has been made between 
‘harassment’ and ‘sexual harassment’. Law no. 6518558 amending the Law on the Disabled559 
defines direct and indirect discrimination with regard to the disabled in line with EU Directive 
2006/54/EC. Another amendment is that in the supply of services provided in the Law on the 
Disabled,  attempts  will  be  made  to  prevent  disabled  females  from  suffering  dual 
discrimination. 
  Where a legal concept is used but not defined by law, it is up to the judiciary to interpret 
and clarify the legal concept. So far, there is no case law to clarify the concepts of ‘direct and 
indirect  discrimination’  as  used  in  the  Labour  Law.  The  new  Penal  Code560  regulates  four 
types  of  crimes  under  the  title  ‘Crimes  against  sexual  inviolability’:  Sexual  assault,  sexual 
exploitation of children, sexual intercourse with an under-aged person, and sexual harassment. 
Sexual harassment has not been defined in the Article itself (Article 105) but in the reasons 
appended to the Article. According to this definition, sexual harassment occurs when acts of a 
sexual  nature  sexually  disturb  the  victim  thereby  violating  the  moral  decency  but  not  the 
physical  inviolability  of  the  victim.  In  other  words,  this  behaviour  may  be  verbal  (remarks 
about  one’s  figure/looks,  crude  sexual  jokes,  verbal  sexual  advances/offers,  unwanted 
messages  or  emails)  or  non-verbal  (staring,  whistling,  indecent  exposure)  but  not  physical. 
Acts  involving  physical  contact,  such  as  patting,  kissing,  fondling,  hugging,  grabbing,  and 
rape constitute types of sexual assault. There was an application to the Constitutional Court 
claiming  that  Article  105/1  of  the  Penal  Code  on  sexual  harassment  was  unconstitutional 
based  on  the  fact  that  sexual  harassment  has  not  been  defined  therein  and  it  therefore 
remained an ambiguous concept and that this contradicted the constitutional principle of the 
legality of crimes and penalties. The Constitutional Court rejected the claim stating that on the 
basis  of  other  crimes  specified  under  the  title  ‘Crimes  against  sexual  inviolability’  and  the 
reasons  appended  to  Article  105,  sexual  harassment  has  to  be  understood  as  any  disturbing 
behaviour  with  a  sexual  aim/overtone  that  does  not  amount  to  a  sexual  assault  or  sexual 
exploitation.561 In sexual harassment, the perpetrator and the victim may be of different sexes 
or  the  same  sex,  single  or  married.  Previously,  moral  harassment  (‘mobbing’)  was  not  an 
asserted claim in labour relations but in recent years it has become an increasingly frequent 
workplace  violence  complaint,  although  it  has  not  been  described  as  a  crime  in  the  Penal 
Code. The Prime Ministry issued a circular on the deterrence of mobbing in public bodies and 
institutions  and  private  workplaces.562  This  circular  defines  mobbing  as  deliberate  and 
systematic  behaviour during  which  an  employee  is  humiliated,  degraded,  socially  excluded, 
intimidated,  has  his  or  her  personality  and  dignity  violated  and  is  subjected  to  (hostile)  ill 
treatment.  Under  Article  417  entitled  ‘Protection  of  the  worker’s  personality’  of  the  new 
Obligations Code that became effective on 1 July 2012, employers are to take the necessary 
measures  to  prevent  sexual  harassment  in  the  workplace  and  to  prevent  further  damage  for 
those who have already been victims of sexual harassment.563 The employer has to ‘provide 
an environment compatible with morals’ in his workplace. 

557  ‘Colour’ and ‘disability’ were added by Law no. 6518 in February 2014 (Official Gazette, 19 February 2014, 
No. 28918). Before this amending law, it was clearly stated in the Law on the Disabled that disability cannot 
be a basis for discrimination. 

558  Official Gazette 19 February 2014, no. 28918. 
559  Law no. 5378, Official Gazette 07 July 2005, no. 25868. 
560  Türk Ceza Kanunu, Law No. 5237, Official Gazette 12 October 2004, No. 25611. 
561  Constitutional Court 25 February 2010, Case No. 2008/55, Decision No. 2010/41 (Official Gazette 22 June 

2010, No. 27619). 

562  Official Gazette 19 March 2011, No. 27879.  
563  Official Gazette 4 February 2011, No. 27836. 

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245 

 
 
                                                      
Positive  discrimination  and  positive  action  are  not  concepts  which  are  used  by  the 
Turkish legislator, but in action plans and government circulars there are proactive measures, 
affirmative actions and a gender mainstreaming approach to enhance female employment and 
gender  equality.  In  the  National  Action  Plan  –  Gender  Equality  2008-2013,564  (Toplumsal 
Cinsiyet Eşitliği Ulusal Eylem Planı 2008-2013), revision of the existing Labour Law with the 
purpose of incorporation of EU gender equality definitions was stated as one of the strategies 
for action to  combat  gender  discrimination in  the labour  market  and to  decrease  the  gender 
pay  gap.  A  Prime  Ministry  circular  on  the  enhancement  of  female  employment  and  the 
provision of equal opportunities, envisages gender equality mainstreaming.565  

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The principle of ‘equal pay for equal work or work of equal value’ is also expressly laid down 
in Article 5 of the Labour Law. The application of certain protective measures on the basis of 
sex does not justify the payment of a lower wage.  

2.2. Access to work and working conditions 
Under Article 5 of the Labour Law, the principle of equal treatment with regard to sex means 
that  there  shall  be  no  discrimination  whatsoever  on  grounds  of  sex,  either  directly  or 
the  conclusion,  content, 
to  sex  or  pregnancy  as  regards 
indirectly,  by  reference 
implementation,  and  termination  of  labour  contracts.  Occupational  activities  for  which,  by 
reason  of  their  nature  or  the  context  in  which  they  are  carried  out,  the  sex  of  the  worker 
constitutes  a  determining  factor  are  excluded.  In  an  employment  relationship,  excluding 
selection,  gender  discrimination  is  a  reason  to  justify  a  claim  for  wrongful  treatment  or 
unlawful dismissal.  

If the worker proves prima facie that there may be discrimination, it is up to the employer 
to prove the contrary. If discrimination is proved, the court will determine a remedy even if 
there  has  been  no  consequent  loss  or  suffering.  A  female  worker  who  considers  herself  to 
have been treated in a discriminatory fashion on the basis of her sex during the course of her 
employment or dismissal may pursue her claims and demand pay amounting to four months’ 
basic  wages.  This  is  the  so-called  ‘discrimination  pay’.  The  introduction  of  a  ceiling  to  the 
amount of discrimination pay contradicts the acquis.  

The  main  shortcomings  of  Article  5  of  the  Labour  Law,  when  viewed  under  the  EU 

acquis, can be rectified by taking the following measures: 
– 

laying down the prohibition of discrimination on the basis of age, sexual orientation and 
gender reassignment; 
implementing  the  principle  of  equal  treatment  in  the  access  to  employment,  vocational 
training,  promotion,  and  working  conditions;  and  in  the  access  to  all  types  and  to  all 
levels of vocational guidance, vocational retraining, including practical work experience; 
defining direct and indirect discrimination; 
providing a more effective level of protection; associations, organisations, and other legal 
entities should also be empowered to engage in proceedings; 
granting an employee giving evidence on behalf of or defending the discriminated person 
the same protection; 
promoting dialogue between social partners to address different forms of discrimination 
based on gender in the workplace and to combat them; and 
establishing  an  equality  body566  for  the  promotion,  analysis  and  monitoring  of  and 
support for equal treatment. 

– 

– 
– 

– 

– 

– 

564  For the full text in English see: http://www.ksgm.gov.tr/Pdf/NAP_GE.pdf, accessed 22 December 2011. 
565  Başbakanlık Kadın İstihdamının Artırılması ve Fırsat Eşitliğinin Sağlanması Genelgesi, Official Gazette 

25 May 2010, No. 27591. 

566  The democratisation package of 30 September 2013 included the confirmation of the establishment of an Anti-
Discrimination and Equality Body. There is an Ombudsman Institution linked to the parliamentary speaker’s 

246  

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Under  Article  70  of the  Constitution, every  Turkish citizen  has the  right to enter the  public 
service.  No  criteria  other  than  qualifications  for  the  office  concerned  shall  be  taken  into 
consideration  for  recruitment  in  the  public  service.  There  is  also  a  2004  Prime  Ministry 
circular  on  Acting  in  Accordance  with  the  Principle  of  Equality  in  Employee  Recruitment 
stating that unless there is a genuine and determining occupational requirement, job notices by 
public bodies and organisations cannot specify the sex of applicants.567 The democratisation 
package introduced on 30 September 2013 spoke of the removal of legal barriers for women 
with headscarves to take up public posts, the intention to increase penalties for hate crimes, 
and  the  intention  to  criminalise  illegal  force  and  intervention  in  personal  life  styles. 
Accordingly, the By-law on the Garments of Public Personnel568 was amended569 and women 
with  headscarves  may  now  hold  public  offices.  Those  who  have  to  wear  formal  suits 
(uniforms), military personnel, police officers and judges and prosecutors, are excluded. For 
the  excluded  public  services,  the  issue  is  left  to  the  discretion  of  these  organisations  as  the 
headscarf ban is a result of their own internal regulations/practices.  

Law no. 6529570 enacted in March 2014 to further realise the principles prescribed in the 
democratisation  package  amended  the  Criminal  Law,  criminalising  unlawful  or  forceful 
interventions in  personal life  style  choices  arising  from  one’s    ideas,  beliefs  or convictions. 
Such  acts  shall  be  punishable  by  one  to  three  years’  imprisonment.  The  same  rule  shall  be 
applied  to  preventions  of  the  use  of  freedom  to  announce  religious  beliefs,  opinions  and 
convictions either by force or by another illegal act. 

In the private sector, discrimination in selection procedures is not prohibited by Article 5 
but, according to Article 122 of the Criminal Code (Türk Ceza Kanunu) as amended by Law 
no.  6529,  the  person  who  discriminates  as  a  result  of  hatred  stemming  from  differences  in 
language,  race,  nationality,  sex,  disability,  political  thought,  belief  or  considerations  and 
accordingly  conditions  employment  of  a  particular  person,  or  sale,  transfer  or  lease  of  a 
movable or immovable object to a person, or prevents a person from using a public service 
shall be punished by one to three years’ imprisonment.  

ISKUR,  the  Turkish  Employment  Office,  issued  a  notice  in  April  2006  outlawing 
discriminatory  job  advertisements.  Requests,  including  statements  or  specifications  in  job 
notices or advertisements, concerning preferences and limitations constituting discrimination 
shall not be put into effect by employment offices.  

2.3. Occupational pension schemes 
There  is  no  express  legislation  as  regards  occupational  schemes  and  gender  discrimination. 
Generally speaking, occupational pension schemes are recognised as being gender-neutral in 
their  design.  There  is  no  available  data  or  research  on  the  gender-neutral  nature  of  these 
occupational schemes. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The rules on pregnancy and childbirth in the Labour Law and the By–Law571 on the Working 
Conditions for Pregnant or Nursing Workers, and Nursing Rooms and Day Nurseries,572 draw 

office. This Institution has a Chief Ombudsperson and five Ombudspersons elected by the Turkish Parliament, 
a secretary general and staff, and a separate budget. One of the Ombudspersons is tasked with complaint 
applications regarding women’s and children’s rights (The Law on the Ombudsman Institution, Law no. 6328, 
Official Gazette 29.06.2012, no. 28338). 

567  Personel Temininde Eşitlik İlkesine Uygun Hareket Edilmesi ile İlgili 2004/7 Sayılı Başbakanlık Genelgesi 

2004/7, Official Gazette 22 January 2004, No. 25354. 

568  Kamu Kurum ve Kuruluşlarında Çalışan Personelin Kılık ve Kıyafetine Dair Yönetmelik, Official Gazette, 

25 October 1982. 

569 Official Gazette, 08 October 2013, No. 28789. 
570 Official Gazette, 13 March 2014, No. 28940.  
571  The Prime Ministry, the ministries and public corporate bodies may issue by-laws to ensure the application of 

laws related to their particular fields of operation. By-laws make laws more concrete and detailed. 

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almost  completely  on  EU  directives.  This  newly  issued  By-Law  provides  for  provisional 
measures  to  protect  pregnant  workers  and  workers  who  have  recently  given  birth  or  are 
breastfeeding  against  risks,  and  prohibits  their  exposure  to  certain  chemical,  physical  and 
biological  agents  (Annexes).  These  agents  are  defined  in  the  By-Law  on  Health  and  Safety 
Measures for Works with Chemicals573 that draws on Directives 1998/24/EC, 1991/322/EEC, 
2000/39/EC, 2006/15/EC, and 2009/161/EU. 

The  so-called  ‘Sack  Law’574  (a  law  amending  quite  a  large  number  of  laws  is  called  a 
sack (bag) law) became effective on 25 February 2011. New types of leave were introduced 
and substantial (generous) increases were made in the duration of the current forms of leave 
for civil servants and workers with a permanent employment contract in the public sector. 

Ante-natal rights and requirements: Definitions given of a ‘pregnant worker’, a ‘worker who 
has  recently  given  birth,’  and  a  ‘breastfeeding  worker’  are  the  same  as  in  Directive 
92/85/EEC (By-Law, Article 4) and so are the rules on pregnancy accommodation. 

Maternity leave: The maternity provisions generally either meet, or are more generous than, 
the  minimum  requirements  of  Directive  92/85/EEC.  In  Turkey,  there  is  a  compulsory 
maternity leave of 16 weeks. A novelty introduced by the Sack Law is that where childbirth 
occurs before the due date, the unused prenatal portion of the leave is added to the post-natal 
portion of the leave. Short-term incapacity benefits are also to be paid for this portion added 
to  the  post-natal  leave.  An  amendment  made  in  the  Civil  Servants  Law  by  the  Sack  Law 
concerns  the  death  of  a  female  civil  servant  during  maternity  leave.  Where  this  occurs,  the 
civil servant father, if he so requests, may use the leave granted to the mother. 

Additional maternity leave: The worker, if she so requests, has to be granted unpaid leave for 
up  to  six  months  following  the  post-natal  period.575  The  two  periods,  compulsory  and 
additional,  run  consecutively,  so  as  to  provide  an  entitlement  to  16  weeks  (18 weeks  in the 
case of a multiple pregnancy) plus 6 months of leave. There can be no gap between the two 
periods.  Additional  unpaid  maternity  leave  upon  request  was  one  year  for  female  civil 
servants. The Sack Law has extended this one-year period to two years.  

Adoption leave: Adoption leave was first introduced for civil servants by the Sack Law. If a 
child under the age of age three is adopted, the adoptive parents will be granted, upon request, 
an  unpaid  adoption  leave  of  up  to  24  months.  If  both  spouses  are  civil  servants,  then  these 
periods can be taken consecutively.  

Other forms of family-related leaves: Paid or unpaid paternity leave for male workers is left 
to  individual  and  collective  labour  agreements.  Male  civil  servants  were  granted  paid 
paternity  leave  of  three  days  upon  the  birth  of  his  child.  The  Sack  Law  extends  this  to  ten 
days. Moreover, it introduces an unpaid paternity leave of 24 months for male civil servants, 
upon request. Where both additional maternity leave and paternity leave are to be taken, these 
leaves may be used in a way coinciding each other or consecutively. In such a case the total 
cannot exceed 24 months per child. 

In  the  Labour  Law  and  the  Civil  Servants  Law,  there  is  no  leave  under  the  title  of 
‘Parental  leave.’  A  worker  may  request  leave  for  a  valid  reason  and  this  may  be  a  family-
related reason. In the Civil Servants Law, there are forms of leave entitled ‘excuse leave’ and 
‘sickness and patient companionship leave’ that may be used for family-related reasons.  

572  Gebe veya Emziren Kadınların Çalıştırılma Şartlarıyla Emzirme Odaları ve Cocuk Bakım Yurtlarına Dair 

Yönetmelik, Official Gazette, 16 August 2013. 

573  Kimyasal Maddelerle Çalışmalarda Sağlık ve Güvenlik Önlemleri Hakkında Yönetmelik, Official Gazette 

12 August 2013, no. 28733.  

574  Official Gazette 25 February 2011, No. 27857 bis. 
575  Article 74 of the Labour Law. 

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A newly introduced type of leave is a leave for the civil servant parent of a disabled child 
or a child with a permanent illness. Article 7 of Law no. 6525576 amending Article 104E of the 
Civil  Servants  Law  envisages  a  paid  leave  of  up  to  ten  days  for  the  civil  servant  mother  or 
father in case of illness of a child with at least 70 % disability (if the child is married then if the 
child’s spouse is also at least 70 % disabled) or a child with a permanent illness. This leave can 
be used wholly or partially in a period of one year.  

Nursing periods: The daily nursing period is 1½ hours during weekdays for female workers 
until the child is one year old. This was also true for female civil servants, but now, with the 
Sack  Law,  it  is  3  hours  a  day  for  a  period  of  six  months  following  the  termination  of 
maternity leave and 1½ hours a day for the second six-month period. 

Childcare: Under the By–Law on the Working Conditions for Pregnant or Nursing Workers, 
and Nursing Rooms and Day Nurseries, workplaces employing between 100 and 150 female 
workers are to establish nursing rooms while those employing more than 150 female workers 
have to establish day nurseries consisting of a nursing room and a day nursery (Article 13). 
The number of male workers with custody of children as a result of death of wife or divorce, 
must be added to figures necessitating the establishment of nursing rooms and day nurseries. 
The children of male workers are to benefit if the mother has died or if parental authority has 
been granted to the father by a court decision. The establishment, conduct and functioning of 
such  facilities  are  entirely  at  the  expense  of  employers.  Employers  may  come  together  to 
establish  a  common  nursing  room  and/or  day  nurseries.  Outsourcing  (agreements  with 
nurseries authorised by public authorities) is also possible for the provision of such services. 
If  the  day  nursery  is  more  than  250  metres  away  from  the  workplace,  the  employer  is  to 
provide transportation services (Articles 13 and 14). 

Protection  against  dismissal:  In  Turkey,  the  labour  contract  is  deemed  to  have  been 
suspended  during  maternity  leave.  Therefore,  dismissal  for  any  reason  during  the  period  of 
maternity  leave  is  legally  non-permissible.  Moreover,  during  employment,  pregnancy  and 
maternity do not constitute valid reasons for contract termination. 

4. Statutory schemes of social security  

In  relation  to  pregnancy  and  giving  birth,  there  are  benefits  in  kind  and  benefits  in  cash. 
Maternity medical benefits cover medical examinations, medication, in-vitro fertilisation, and 
hospitalisation  designed  to  cover  care  for  the  insured  woman  or  the  uninsured  wife  of  the 
male worker.  
  Maternity  allowance  is  a  short-term  incapacity  benefit  designed  to  compensate  for  a 
worker’s loss of earnings due to pregnancy and giving birth. Unless there is a provision to the 
contrary in the individual or collective labour contract, there will be no pay by the employer 
during maternity leave; the worker will be paid maternity allowance equalling sick pay by the 
social  security  organisation  (Law  No.  5510,577  Article  18).  To  qualify  for  this  maternity 
allowance, a female worker has to have made the relevant contributions for at least 90 days in 
a period of one year before the birth.  

In  some  schemes,  the  worker  can  make  up  for  any  unpaid  leave  by  way  of  extra 
contributions. During a period of unpaid maternity leave, neither the worker nor the employer 
will  be  expected  to  contribute.  The  worker  may,  if  she  chooses,  pay  contributions  for  the 
statutory (compulsory) maternity leave but the employer will not have a duty to contribute. If 
the worker pays contributions for the statutory  maternity leave period, this period counts as 
pensionable service. Also, where a worker resigns due to pregnancy or having given birth, she 

576 Official Gazette 27 February 2014, no. 28926. 
577  Social Insurances and General Health Insurance Law (Sosyal Sigortalar ve Genel Sağlık Sigortası Kanunu), 

Official Gazette 16 June 2006. 

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may, if she chooses, pay contributions for a maximum period of two years during which she 
remains  unemployed.  This  period  starts  at  the  birth  and  the  worker  may  benefit  from  this 
provision for two separate births.578  

The  so-called  ‘milk  money’  (a  nursing  allowance)  is  a  lump-sum  payment  made  to  a 
breastfeeding worker or to the uninsured breastfeeding wife of the male worker for each new-
born child provided that the child is alive.579 To qualify for the nursing allowance, a female 
worker or the working husband of the woman has to have paid at least 120 days’ contributions 
within a period of one year before the birth.  

If a female worker is the mother of a disabled child in need of constant care, she will be 
entitled to early retirement: 90 extra pensionable days will be added to each year of service.580 
It is the Social Security Organisation Health Board (Sosyal Güvenlik Kurumu Sağlık Kurulu) 
that determines the child’s condition on the basis of the relevant by-law.581 

5. Self-employed persons 

Legislation is gender neutral in its wording. Turkey has a very small number of self-employed 
women. Self-employed women will receive full maternity benefits.  

6. Goods and services 

The  Law  of  Property,582  the  Law  of  Obligations583  and  the  Social  Insurances  and  General 
Health  Insurance  Law584  are  the  main  laws  in  this  field.  Until  recently,  female  university 
students  who  wore  a  headscarf  were  denied  the  right  to  education.  There  is  no  actual  law 
prohibiting the use of headscarves by female university students, but this was prohibited by a 
constitutional court decision of a political nature.585 The ban was eliminated in 2010 after the 
Higher  Education  Board  (YÖK)  sent  a  circular  to  universities  on  the  issue.  The  insurance 
industry implements unisex pricing. 

7. Enforcement and compliance aspects 

Sanctions in cases of discrimination are imposed by the courts. Access to the courts is ensured 
for  victims  of  discrimination  but  interest  groups  whose  aim  is  to  assist  victims  of 
discrimination  or  to  combat  discrimination  do  not  have  access  to  the  courts.  The  worker 
concerned can claim particular types of compensation and if he/she has increased job security 
he/she can request the court to invalidate the termination of the contract and can thereby claim 
wages.  He/she  can  also  demand  to  be  reinstated in  his/her job.  If  not  reinstated,  he/she  can 
claim  pecuniary  damages  under  the  system  of  sanctions  in  general  labour  law.  There  are 
attempts  to  establish  an  equality  body.  The  social  partners  do  not  play  a  significant  role  as 
regards  gender  equality  in  the  labour  market  and  the  role  of  collective  agreements  in  the 
development of equality issues has never been really relevant.  

8. Overall assessment 

Turkey is highly responsive to change and it has taken initiative in the adaptation process by 
developing  new legal rules  and innovative  policies. The  EU  dimension  of  the  promotion  of 

578  Article 41, Law No. 5510.  
579  Article 16, Law No. 5510. 
580  Article 28, Law No. 5510.  
581  Article 15, By-Law on Incapacity for Work and Schemes for Invalidity (Çalışma Gücü Ve Meslekte Kazanma 

Gücü Kaybı Oranı Tespit İşlemleri Yönetmeliği), Official Gazette, 11 October 2008, No. 27021. 

582  The Law of Property (Eşya Hukuku) is the fourth book of the Civil Code (Medeni Kanun), Official Gazette 

8 December 2001, No. 24607. 

583  Law of Obligations (Borçlar Kanunu), Law No. 6098, Official Gazette 4 February 2011, No. 27836. 
584  Sosyal Sigortalar ve Genel Sağlık Sigortası Kanunu, Law No. 5510, Official Gazette, 16 June 2006. 
585  Decision No. 1991/8 of 9 April 1991, Official Gazette, 31 July 1991. 

250  

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gender  equality  is  taken  into  consideration  in  the  preparation  of  new  legislation,  legislative 
amendments, government programmes, policies, projects and development programmes. The 
institutional dimension  of  gender equality  (the  establishment  of  new  institutions  to  promote 
gender equality) and the formulation of gender mainstreaming policies are prioritised. 

UNITED KINGOM – Aileen McColgan 

1. Implementation of central concepts 

The Equality Act was passed in April 2010 and was implemented, insofar as is relevant here, 
in October 2010 and April 2011. It brings together all British discrimination law dealing with 
sex,  ethnicity,  disability,  sexual  orientation,  religion  or  belief  and  age.  It  has  replaced  the 
main  implementing  measure  for  the  EU  gender  discrimination  law  in  the  United  Kingdom, 
previously the Sex Discrimination Act 1975 (SDA) and the Equal Pay Act 1970 (EqPA) (the 
latter covering inequality in contractual conditions rather than simply in pay). The 2010 Act 
also  regulates  direct  and  indirect  discrimination  including  positive  action,  instructions  to 
discriminate, harassment and sexual harassment. It explicitly covers not only discrimination 
against  women  and  men  but  also  discrimination  against  a  person  ‘proposing  to  undergo,  is 
undergoing  or  [who]  has  undergone  a  process  (or  part  of  a  process)  for  the  purpose  of 
reassigning the person’s sex by changing physiological or other attributes of sex’ (Section 7), 
discrimination  related  to  pregnancy  and  maternity  and  (in  the  field  of  employment) 
discrimination on the ground that a person is married or in a civil partnership (Section 8). The 
Equality Act 2010 consolidated more than it changed in the field of gender equality, attention 
being drawn below to the most significant changes it has made. 

Direct discrimination is defined (Section 13) as less favourable treatment ‘because of a 
protected  characteristic’  such  as  sex,  pregnancy  or  maternity  or  gender  reassignment. 
Comparison is required between the treatment of the claimant and that which was or would 
have been received by a (real or hypothetical) comparator in materially similar circumstances 
(Section  23).  No  comparator  is  required  to  establish  pregnancy  discrimination.  Section  17 
provides that such discrimination occurs where a woman is treated unfavourably (rather than 
less favourably), outside the context of work, because she is pregnant, has given birth or (for a 
six-month period) is breastfeeding. Section 18 provides that pregnancy discrimination occurs 
in  the  context  of  work  where  a  woman  is  treated  unfavourably  because  she  is  pregnant,  or 
suffering from pregnancy-related illness, or in connection with maternity leave. 

In  Equal  Opportunities  Commission  v  Birmingham  City  Council586  the  House  of  Lords 
ruled that the Council had discriminated directly against schoolgirls in setting a higher mark 
for  success  in  the  ‘11  plus’  examination  (by  which  children  were  selected  for  grammar 
schooling) for girls than for boys, because there were fewer grammar school places available 
for girls. Their Lordships ruled that it was unnecessary to establish an intention or motive on 
the part of the council to discriminate against girls. Shortly afterwards, in James v Eastleigh 
Borough  Council587  their  Lordships  ruled  that  the  proper  approach  to  the  test  for  direct 
discrimination was to ask (in a case in which a man challenged discrimination on grounds of 
(discriminatory) state pensionable ages) whether ‘but for’ his sex he would have been more 
favourably  treated.  The  benefit  of  the  ‘but  for’  test  is  that  it  excludes  arguments  (as  in  the 
EOC case) that less favourable treatment was motivated by factors other than an intention to 
discriminate against the disfavoured group, such as customer preference, chivalry, etc.588 The 
preparatory materials and explanatory notes to the 2010 Act make it clear that the ‘but for’ 

586  [1989] AC 1155. 
587  [1990] 2 AC 751. 
588  See also R (on the application of European Roma Rights Centre & Ors) v Immigration Officer at Prague 

Airport & Ors [2005] 2 WLR 1. 

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test  continues  to  apply  to  direct  discrimination  despite  the  change  in  definition  from  ‘on 
grounds of’ to ‘because of’. 

The  Equality  Act  2010  contains  a  provision  prohibiting  ‘dual  discrimination’  (Section 
14), defined as direct discrimination on two combined protected grounds. This provision does 
not apply to indirect discrimination, or to discrimination on a combination of more than two 
grounds. The current Government, which faces a general election in May 2015, has made it 
clear that it does not intend to implement the provision. 

The Equality Act 2010 defines indirect discrimination as occurring (Section 19) where a 
‘provision,  criterion  or  practice’  is  applied  which  is  or  would  be  applied  to  persons  with 
whom the claimant does not share a ‘protected characteristic’ (such characteristics including 
sex). There is some controversy as to whether the test for justification is adequate to comply 
with EU law, and whether its adoption was regressive, the test prior to the implementation of 
Directive  2002/73/EC  being  that  established  by  the  CJEU  in  cases  such  as  Bilka  v 
Kaufhaus.589  It  appears  from  the  application  of  a  materially  identical  test  applicable  to  race 
discrimination  that  the  courts  will  interpret  the  new  test  so  as  to  give  effect  to  the  EU 
approach  to  the  extent  that  this  is  more  demanding  than  the  words  of  the  domestic 
provision.590 

The  ‘but  for’  approach  to  direct  discrimination  had  the  effect  that  less  favourable 
treatment  on  the  ground  of  sex  was  prohibited  by  the  SDA,  in  the  absence  of  a  specific 
provision,  even  where  its  purpose  was  to  ameliorate  existing  disadvantages  and/or  past 
discrimination (positive  action). The  exceptions  provided  by  the  Equality  Act’s predecessor 
were  very  narrow  and  applied  in  the  employment  context  only  to  permit  the  provision  of 
training to, and encouraging applications from, women or men where they were very under-
represented  in  the  relevant  work.  The  2010  Act  widened  the  scope  for  positive  action, 
allowing  such  action  where  (outside  the  context  of  recruitment  and  promotion)  it  is  a 
proportionate  means  of  reducing  disadvantage,  meeting  particular  needs  or  encouraging 
participation  by  the  under-represented  gender  (Section  158).  The  Act  further  allows  ‘tie-
break’ discrimination in the context of recruitment and promotion where it is a proportionate 
means  of  encouraging  participation  by  the  under-represented  gender  or  minimising  sex-
related disadvantage (Section 159). 

The Equality Act 2010 in Section 111 prohibits the issue of instructions to discriminate 
by a person who is him or herself in a position such that discrimination by them against the 
person  to  whom  the  instruction  is  issued  would  breach  the  Act.  Section  111  also  prohibits 
such persons from causing or inducing discrimination. These provisions may be enforced by 
individuals.  

The  Equality  Act  2010  also  prohibits  harassment  and  sexual  harassment  broadly  along 
the  lines  of  Directive  2006/54/EC,  though  the  definition  in  Section  26  covers  unwanted 
conduct whose purpose or effect is to violate a person’s dignity or (rather than and) to create 
an intimidating, hostile, degrading, humiliating or offensive environment for her. The test in 
Section 26 is therefore somewhat more generous than that required by the Directive. The Act 
imposes  a  soft  objective  test  for  conduct  whose  effect  rather  than  purpose  is  relied  upon, 
Section 26(4) providing that the perception of the complainant, the other circumstances of the 
case and whether it is reasonable to regard conduct as having a particular effect may be taken 
into account in determining whether conduct had the effect of violating dignity or creating an 
intimidating etc. environment. 

589  Case C-170/84 Bilka v Kaufhaus [1986] ECR I-01607 and [1994] ECR I-03567. 
590  R (E) v Governing Body of the Jews Free School and Couronne & Ors v Crawley Borough Council & Ors 

[2008] All ER (D) 54, R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213. 

252  

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2. Equal pay and equal treatment at work 

2.1. Equal pay 
The  Equality  Act  2010  provides  that  a  claimant  can  demand  the  insertion  of  an  ‘equality 
clause’  into  his  or  her  contract  of  employment  to  bring  it  into  line  with  that  of  her/his 
‘comparator’,  in  the  event  of  a  successful  claim.591  The  Act  defines  as  an  appropriate 
‘comparator’ for these purposes a person of the opposite sex who is employed by the same 
employer,  in  the  same  establishment  or  one  at  which  broadly  similar  terms  and  conditions 
apply, in ‘like work’, ‘work rated as equivalent’ (e.g. by a job evaluation scheme undertaken 
by  the  employer)  or  ‘work  of  equal  value’.  The  Supreme  Court  ruled  in  North  &  Ors  v 
Dumfries  and  Galloway  Council592    that,  where  claimants  seek  to  rely  on  comparators 
employed  at  a  different  establishment,  the  Equality  Act  does  not  require  there  to  be  a  ‘real 
possibility’ of the comparators doing the same, or broadly similar, jobs at the claimant’s place 
of  work.  Claims  by  reference  to  comparators  falling  outside  these  strict  categories  may  be 
made by reference to Article 157 TFEU, and (in a change to the previous position) claimants 
can also challenge direct discrimination in pay by reference to a hypothetical comparator. The 
employer can block an equal pay claim by pleading the ‘GMF’ defence, that is, by showing 
that  any  difference  is  genuinely  due  to  a  material  factor  (or  factors)  which  is  ‘not  the 
difference of sex’.593 A pay-related factor which is indirectly discriminatory can succeed as a 
defence only if it is justified in accordance with EU law; directly discriminatory pay-related 
factors cannot be justified; and sex-neutral pay-related factors do not have to be justified. The 
Equality  Act  also  provides  some  protection  from  victimisation  connected  with  discussions 
related to pay (this to prevent employers from avoiding equal pay claims by keeping workers 
ignorant of relative rates of pay (Section 77). 

2.2. Access to work and working conditions  
The Equality Act 2010 applies, in the context of work, to those employed ‘under a contract of 
service  or  of  apprenticeship  or  a  contract  personally  to  execute  any  work  or  labour’,  and 
applies  also  to  partners,  office  holders  and  agency  workers  who  are  protected  from 
discrimination  by  both  agency  and  (where  they  are  ‘employed’  by  the  agency)  by  the 
employer  with  whom  they  are  placed.  It  does not however  apply  to those  who are engaged 
under a contract which does not require the personal execution of work, such as the claimant 
in  Mirror  Group  Newspapers  Ltd  v  Gunning,  who  complained  that  a  newspaper  group  had 
refused to transfer a distribution agreement from her father to her on the latter’s retirement.594 
Also  of  general  interest  is  the  2005  decision  of  the  House  of  Lords  in  Percy  v  Church  of 
Scotland in which their Lordships accepted (contrary to previous case law) that a minister of 
religion was employed for the purposes of an SDA claim.595 Both of these cases would be as 
applicable under the Equality Act 2010 as they were under its predecessor. 

The Equality Act applies in relation to ‘arrangements for appointment, decisions whether 
to appoint and the terms offered, as well as to ‘access to opportunities for promotion, transfer 
or  training,  or  to  any  other  benefits,  facilities  or  services’,  dismissal  or  subjection  to 
harassment  or  ‘any  other  detriment’.  Prior  to  October  2013  the  Act  explicitly  applied  to 
harassment  by  third  parties  where  the  harassment  had  occurred  to  the  knowledge  of  the 
employer on at least two previous occasions and s/he subsequently failed to take such steps as 
would  have  been  reasonably  practicable  to  prevent  further  harassment.  This  provision  was 
repealed  from  October  2013.  The  prohibitions  on  discrimination  and  harassment,  but  not 
victimisation, continue to apply after employment has ended. There is no distinction between 
private and public employment. The Equality Act does not define the geographical scope of 
the employment provisions. Previously, under the SDA, ‘employment at an establishment in 

591  Part 4, Chapter 3 Equality Act.  
592 [2013] IRLR 737.  
593  Section 69 Equality Act.  
594  [1986] ICR 145. 
595  [2005] UKHL 73 [2006] ICR 134. 

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Great  Britain’  was  defined  to  include  cases  in  which  the  worker  works  wholly  or  partly  in 
Great Britain, or works wholly outside Great Britain for the purposes of business carried out 
by  the  employer  at  an  establishment  in  Great  Britain,  and  was  or  is  ordinarily  resident  in 
Great Britain at the time when s/he applied for or was offered the employment, or at any time 
during the course of the employment.  

The Equality Act provides exceptions to the prohibition on sex discrimination, Schedule 
9, Part 1 permitting A to apply in relation to work a requirement to have a particular protected 
characteristic where 'A shows that, having regard to the nature or context of the work – (a) it 
is  an  occupational  requirement,  (b)  the  application  of  the  requirement  is  a  proportionate 
means of achieving a legitimate aim, and (c) the person to whom A applies the requirement 
does not meet it (or A has reasonable grounds for not being satisfied that the person meets it). 
Religious  organisations  may  discriminate  on  grounds  of  sex  in  appointing  ministers  of 
religion.  The  Equality  Act  excepts  from  its  provisions  those  acts  done  ‘for  the  purpose  of 
safeguarding  national  security  [which  are]  proportionate  to  do  for  that  purpose’.  Finally, 
limited exceptions apply to discrimination required by statutory provisions concerned with the 
protection of women. 

2.3. Occupational pension schemes 
The Equality Act 2010 applies to occupational pensions as it does to other forms of pay, both 
as regards access to schemes and payments made thereunder. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

Discrimination on the ground of pregnancy or maternity leave is prohibited by the Equality 
Act broadly in line with EU law (Sections 17 and 18 Equality Act), but there is no prohibition 
as such on the dismissal of pregnant women for reasons not associated with pregnancy. All 
pregnant  women  are  entitled  to  reasonable  paid  time  off  for  prenatal  care.  All  pregnant 
employees  are  entitled  to  52  weeks’  maternity  leave  during  which  all  normal  contractual 
entitlements other than wages or salary are maintained. Special protection is provided against 
redundancy arising during maternity leave, with women on leave being entitled to be offered 
any suitable alternative vacancy which is available. If a woman on  maternity leave is made 
redundant  her  maternity  leave  period  comes  to  an  end.  Payment  during  maternity  leave  is 
generally  at  90 %  of  the  normal  salary  for  six  weeks  followed  by  33  weeks  at  a  fixed  rate 
(EUR 166.93 (GBP 138.18) from April 2013 or 90 % of salary, whichever is less).  

Adoption leave is similar to maternity leave except that either adopting parent can take it, 
pay is at EUR 166.93 (GBP 138.18) or 90 % of salary, whichever is less, for 39 of the total 52 
weeks available and return to work is in line with that applicable after more than 26 weeks’ 
maternity leave regardless of the period of leave taken. Paternity leave is fixed at two weeks, 
paid at EUR 166.93 (GBP 138.18) or 90 % of salary, whichever is less, and is subject to a 
qualifying period of 26 weeks’ employment. Employees are entitled to return to the same job. 
Parental  leave  is  fixed  at  18  weeks  per  parent  per  child,  which  is  to  be  taken  in  minimum 
periods of one week, subject to a maximum of four weeks in any one year, unpaid, in the first 
five years of the child’s life (18 years in the case of disabled children). All leave is available 
only to employees and notice requirements apply. 

4. Statutory schemes of social security 

Generally  speaking  the  statutory  social  security  scheme  does  not  discriminate  directly  on 
grounds  of  sex  except  insofar  as  the  state  pensionable  age  is  still  in  the  process  of  being 
equalised, and meanwhile some benefits remain linked with the differential pensionable ages. 
Discrimination as regards survivors’ benefits is also being phased out. Women can, however, 
be rendered ineligible for some benefits by the earnings or benefit entitlement of those with 
whom they cohabit. This is not a problem directly linked to sex as the rules are sex-neutral, 
but  it  is  the  result  of  the  statutory  security  scheme  being  premised  on  a  model  of  female 

254  

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dependency,  and  serves  disproportionately  to  disadvantage  women  by  reinforcing  their 
economic dependency.  

5. Self-employed persons 

Those ‘self-employed’ women who provide work under contracts ‘personally to execute any 
work or labour’ will be protected by the Equality Act 2010. Relevant questions will include 
whether the ‘self-employed’ woman in fact provides work under a contract (however short-
term)  under  which  she  is  responsible  for  the  personal  execution  of  the  work  which  the 
contract  covers.  Further,  the  decision  of  the  Supreme  Court  in  Jivraj  v  Hashwani596  would 
appear to deny the protection of anti-discrimination law to anyone who would not be regarded 
as  a  (subordinated)  ‘worker’  for  the  purposes  of  EU  law,  unless  (as  in  the  case  of  contract 
workers,  police  officers,  partners  in  firms,  barristers  and  advocates)  such  persons  are 
expressly covered by the legislation.  

The Social Security (Maternity Allowance) (Participating Wife or Civil Partner of Self-
employed Earner) Regulations 2014, which came into effect on 1 April 2014, make provision 
for the payment of a maternity allowance in line with the minimum requirements imposed by 
the Directive to the partners of self-employed workers who participate in their partners’ self-
employed business but who do not receive payment in respect of such participation. Whereas 
assisting  spouses/partners  who  were  paid  for  their  efforts  would  have  been  entitled  to 
maternity allowance prior to the implementation of the Regulations, those who were not paid 
for their assistance were not..   

6. Goods and services 

The  Equality  Act  prohibits  discrimination  across  the  substantive  scope  of  cover  under 
Directive  2004/113/EC.  The  Act  goes  beyond  the  Directive  in  applying  to  some  extent  to 
education (though it permits single-sex schools) and the content of media and advertisements. 

7. Enforcement and compliance aspects 

All  employment-related  cases  are  heard  by  employment  tribunals  at  which  costs  are  not 
generally  recoverable  (by  contrast  with  the  normal  position  that  costs  are  awarded  to  the 
successful  party).  Cases  relating  to  goods  and  services  are  heard  by  county  courts  where 
judges have little expertise in discrimination claims. Such claims are relatively rare.  

The  Equality  Act  prohibits  victimisation  in  connection  with  claims  brought  under  that 
Act,  although  the  victimisation  provisions  do  not  appear  to  apply  after  the  end  of  an 
employment  or  other  relationship  covered  by  the  EqA.  The  burden  of  proof  in  relation  to 
victimisation is subject to the normal rules on reversal. The case law is complex but, for the 
most part, a ‘but for’ approach is adopted which is similar to that described above in relation 
to  direct  discrimination.  The  Act  defines  victimisation  so  as  not  to  require  a  comparator, 
providing that it occurs where (Section 27) a person is subjected to a detriment because s/he 
has done or is believed to have done, or possibly be about to do, a ‘protected act’ (that is, an 
act connected with the Equality Act). 

The  rules  on  the  burden  of  proof  in  the  Equality  Act  are  modelled  on  those  in  the 
Directive, the burden passing where the claimant establishes facts from which an inference of 
discrimination  might  be  drawn.  The  courts  are  struggling  with  what  exactly  is  required  in 
order  to  shift  the  burden  but  this  is  significantly  a  question  of  fact  rather  than  law.  For 
instance,  a  difference  in  treatment  and  a  difference  in  gender  are  insufficient.  However,  if 
statistics suggest that women are disadvantaged in comparison to men in a given organisation, 
or if the employer has wrongfully failed to disclose documents relating to a case during legal 

596  [2012] 1 All ER 629. 

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255 

 
 
 
 
 
 
 
 
 
                                                      
proceedings, or if there is some other evidence which might suggest that discrimination has 
occurred,; a tribunal may look to the employer for an explanation of the alleged mistreatment. 
The  Equality  Act  provides  for  declarations,  recommendations  that  the  respondent  take 
within  a  specified  period  action  designed  to  obviate  or  reduce  the  adverse  effect  on  the 
complainant  or  on  any  other  person  of  an  act  of  discrimination  (Section  124(3)),  and 
(unlimited)  compensation  in  relation  to  employment-related  discrimination.  Compensation 
can  be  significant.  Outside  the  employment  context  declarations,  damages  and  injunctive 
relief  are  available.  The  Equality  Act  provides  (Section  124(50))  that  in  the  case  of 
unintentional  indirect  discrimination  a  tribunal  ought  not  to  consider  compensation  without 
first  considering  the  making  of  a  declaration  and/or  a  recommendation.  Domestic  remedial 
provisions  are  open  to  criticism  mainly  on  the  ground  that  they  apply  to  so  few  cases  in 
practice: the individual complaints-based model adopted by domestic law means that most sex 
discrimination goes unchecked.  

As  to  whether  access  to  the  courts  is  safeguarded  for  victims  of  discrimination, 
victimisation, although unlawful, is commonplace in employment-related cases and potential 
claimants  fear  destroying  their  careers  by  taking  action.  The  Equality  and  Human  Rights 
Commission can support claimants, as can trade unions and other voluntary bodies. But cases 
cannot be brought ‘on behalf of’ claimants, much less on behalf of anonymous claimants. The 
Commission  does  have  powers  of  ‘formal  investigation’  which  could  uncover  widespread 
discrimination in particular sectors etc. but the exercise of these powers by the Commission’s 
predecessor  bodies  was  constrained  by  the  courts  in  a  number  of  cases  and  formal 
investigations are in practice very difficult to carry out as a result. It is possible for interest 
groups to challenge sex discrimination by way of judicial review if they can show a sufficient 
interest in the case but the overall answer would have to be that the very individual operation 
of the law in practice is insufficient to protect from sex discrimination. 

The Equality and Human Rights Commission, which came into being in 2007 as a single 
body  in  place  of  the  various  equality  commissions,  seeks  to  implement  the  requirements  of 
EU  law.  Trade  unions  do  not  have  any  formal  legal  role  in  the  implementation  of  gender 
equality law, though in practice they are responsible for supporting many of the cases which 
reach the courts (particularly in the area of equal pay). In the UK collective agreements are 
not  used  as  means  to  implement  EU  gender  equality  law  as  they  are  non-binding  and 
increasingly reached only at the level of the enterprise.  

8. Overall assessment  

The  main  difficulties  with  the  existing  domestic  law  relate  to  the  individual  model  of 
enforcement, as well as to the very narrow comparator-driven approach to equal pay claims 
notwithstanding  the  small  extensions  made  by  the  Equality  Act  2010  in  this  regard.  The 
implementation  of  the  Equality  Act  2010  has  done  much  to  harmonise  domestic 
discrimination provisions across the board, but does not significantly alter the complexity of 
sex discrimination law. 

Northern Ireland 

The  Equality  Act  2010  does  not  apply  to  Northern  Ireland  where  the  Sex  Discrimination 
(Northern Ireland) Order 1976 as amended, and the Equal Pay (Northern Ireland) Act 1970 as 
amended, continue to apply. Attention will be drawn below only to those provisions which are 
materially  different  from  the  corresponding  provisions  of  the  Equality  Act  2010.  Unless 
otherwise  stated,  the  Great  Britain  case  law  referred  to  above  is  applicable  in  Northern 
Ireland. 

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Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
1. Implementation of central concepts  

As above, the relevant provisions are the Sex Discrimination (Northern Ireland) Order 1976 
as  amended,  and  the  Equal  Pay  (Northern  Ireland)  Act  1970  as  amended.  The  1976  Order 
regulates  direct  and  indirect  discrimination  including  positive  action,  instructions  to 
discriminate, harassment and sexual harassment. It explicitly covers not only discrimination 
against women and men but also discrimination connected with gender reassignment, etc., in 
similar terms to the Equality Act 2010 in Great Britain (see above). 

Direct discrimination is defined (Paragraph 3) as less favourable treatment ‘on the ground 
of’ a person’s sex/pregnancy/gender reassignment/married or civil partnership status. There is 
no  provision  for  ‘dual  discrimination’.  The  exceptions  provided  for  positive  action  in 
Northern Ireland are much narrower than in Great Britain, extending only (as did the Equality 
Act’s predecessor’s provisions) to the provision of training to, and encouraging applications 
from,  women  or  men  where  they  were  very  under-represented  in  the  relevant  work. 
Instructions to discriminate are prohibited but only the Northern Ireland Equality Commission 
(EHRC) has the right to enforce the provisions dealing with instructions to discriminate. 

2. Equal pay and equal treatment at work 

2.1. Equal pay 
The Equal Pay (Northern Ireland) Act 1970 as amended is worded in broadly similar terms to 
the  relevant  parts  of  the  Equality  Act  2010  save  that  claimants  cannot  in  Northern  Ireland 
challenge  direct  discrimination  in  pay  by  reference  to  a  hypothetical  comparator  and  the 
Northern  Ireland  Act  does  not  provide  protection  from  victimisation  connected  with 
discussions related to pay.  

2.2. Access to work and working conditions  
The  Sex  Discrimination  (Northern  Ireland)  Order  1976  as  amended  applies  in  materially 
identical terms in Northern Ireland as the Equality Act 2010 does in Great Britain except that 
the prohibitions on victimisation as well as discrimination and harassment continue to apply 
after  employment  has  ended.  The  Order  applies  to,  ‘employment  at  an  establishment  in 
Northern  Ireland’  which  is  defined  to  include  cases  in  which  the  worker  works  wholly  or 
partly  in  Northern  Ireland,  or  works  wholly  outside  Northern  Ireland  for  the  purposes  of 
business carried out by the employer at an establishment in Northern Ireland, and was or is 
ordinarily  resident  in  Northern  Ireland  at the time  when  s/he  applied  for or  was  offered the 
employment, or at any time during the course of the employment. 

2.3. Occupational pension schemes 

The  Equal  Pay  (Northern  Ireland)  Act  1970  applies  to  occupational  pensions  as  it  does  to 
other forms of pay, both as regards access to schemes and payments made thereunder. 

3. Pregnancy and maternity protection, parental leave and adoption leave 

The provisions dealing with discrimination on the ground of pregnancy or maternity leave are 
materially identical to those which apply in Great Britain. 

4. Statutory schemes of social security 

The position in Northern Ireland is the same as that in Great Britain.  

5. Self-employed persons 

The  position  in  Northern  Ireland  is  the  same  as  that  in  Great  Britain.  The  Social  Security 
(Maternity  Allowance)  (Participating  Wife  or  Civil  Partner  of  Self-employed  Earner) 

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257 

 
 
 
 
 
 
 
 
 
 
 
 
 
Regulations (Northern Ireland) 2014 are materially identical to the Social Security (Maternity 
Allowance) (Participating Wife or Civil Partner of Self-employed Earner) Regulations 2014, 
which apply in Great Britain. 

6. Goods and services 

The position in Northern Ireland is the same as that in Great Britain. 

7. Enforcement and compliance aspects 

The position in Northern Ireland is the same as that in Great Britain save that victimisation is 
regulated after the end of the employment or other relationship covered by the SD (Northern 
Ireland) Order in Northern Ireland. The Northern Ireland Order defines victimisation as ‘less 
favourabl[e]’ treatment ‘by reason that the person victimised has’ done a protected act (that is, 
an  act  connected  with  the  Order  or  the  Equal  Pay  (Northern  Ireland)  Act).  The  Northern 
Ireland Equality Commission plays the role of single body in Northern Ireland.  

8. Overall assessment  

In addition to the difficulties noted in Great Britain, the absence of a single Equality Act in 
Northern Ireland does mean that there are sometimes arbitrary differences between different 
protected grounds.  

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Annex I 
Questionnaire 

EU Gender Equality Law in 33 European Countries: Update 2014 

Questionnaire 

The purpose 

The so-called General Report should provide a description of EU gender equality law in all 33 
countries participating in the Gender Equality Network: the 27 Member States, the acceding 
country  (Croatia),  and  Iceland,  Liechtenstein,  Norway,  FYR  of  Macedonia  and  Turkey.  It 
should  furthermore  include  a  description  of  any  measures  going  beyond  the  minimum 
requirements of the directives in these countries.717 The relevant gender equality directives, in 
addition  to  Article  157  TFEU,  are  Directives  2006/54  (Recast  Directive),  2004/113  (Goods 
and  Services),  79/7  (Statutory  Social  Security),  2010/41  (Self-Employed  Workers),  92/85 
(Pregnancy and Maternity) and 2010/18 (Parental Leave). The report will contain a country-
by-country  overview  of  how  each  country  has  implemented  these  directives.  The  issues 
addressed in this General Report will at least include the implementation of general concepts 
of discrimination and (sexual) harassment, access to work and working conditions (including 
pay  and  occupational  pension  schemes),  statutory  social  security,  self-employed  workers, 
pregnancy  and  maternity  protection  and  parental  leave,  access  to  and  supply  of  goods  and 
services  and  information  on  the  implementation  of  so-called  horizontal  provisions,  e.g. 
protection against victimisation, the burden of proof, remedies and sanctions, gender equality 
bodies, the role of social partners etc.  
This  General  Report,  a  kind  of  handbook,  is  aimed  at  a  broad  public  (policy  makers,  legal 
professionals, researchers), and will be updated each year. As the report will be aiming at a 
broad (non-legal) public, the text should give a general overview, and should be clear, easily 
accessible and easy to read. Technical legal language and details should be avoided. 

The content 

This report will consist of two parts: an executive summary (Part A) and the national reports 
(Part  B).  An  overview  of  relevant  national  legislation  and  a  selected  bibliography  will  be 
included in annexes to this report. 

Part A: The executive summary 

The executive summary will contain a comparative analysis of the transposition of EU gender 
equality rules. This part (approximately 30 pages) will also be provided separately in a quality 
and format suitable for online and printed publication (camera ready) in English, German and 
French.718 

717  A similar report, EU Gender Equality Law in 33 European Countries, was produced by the European Network 
of Legal Experts in the Field of Gender Equality under previous contracts and has since been updated each 
year, except in 2012, following a change of the work programme suggested by the Commission. This report is 
available on http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-9, accessed 11 April 2013. 

718  A similar publication, EU Rules on Gender Equality: How are they transposed into national law?, was 

produced by the European Network of Legal Experts in the Field of Gender Equality under previous contracts, 
and was updated in 2010. This publication is available on http://ec.europa.eu/justice/gender-equality/
document/index_en.htm#h2-9 and from the EU Bookshop, http://bookshop.europa.eu/en/search/?webform-

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

259 

 
 
 
 
 
 
 
 
 
 
                                                      
 
Part  B:  The  implementation  of  the  EU  gender  equality  acquis  in  the  Member  States,  the 
acceding country and EEA countries 

Preliminary remark 1: 
This part includes a country-by-country overview of how each country has implemented EU 
gender  equality  law, in  particular  the relevant  directives.  It  should  also indicate as  much  as 
possible the extent to which national measures go beyond the minimum requirements of EU 
gender equality law.  

For  the  purposes  of  this  report  the  term  ‘implementation’  should  be  understood  as 
referring  mainly  to  the  transposition  of  directives  into  national  law  (sometimes,  of  course, 
such  transposition  is  not  necessary,  in  particular  where  national  legal  provisions  already 
comply  with  the  requirements  of  the  directive  in  question).  In  other  words,  what  we  are 
looking for is an easily accessible, accurate and clear description for the general public of the 
main  legislative719  provisions  transposing  EU  gender  equality  directives  and  Article  157 
TFEU,  including  pre-existing  national  provisions  that  adequately  (or  not)  ‘implement’  the 
directives. However, we would like the national experts to also include some interesting and 
leading  cases  of  the  national  courts  regarding  the  provisions  that implement  (transpose)  the 
directives, since transposition of the directives and interpretations by the courts of the relevant 
provisions  cannot  be  separated.  We  fully  realise  that  including  court  case  law  in  the  report 
poses  a  problem  in  at  least  two  respects:  in  some  countries  hardly  any  cases  are  decided, 
while in others there are too many cases to report. As to the selection to be made, we trust the 
wisdom of our experts – exactly because they are experts! The same holds true for producing 
a  concise  but  clear  description.  As  experts  you  are  in  the  best  position  to  distinguish  what 
really matters for a good general description of your national legislation for a broad general 
public, and what is important for lawyers but less important for the general public. 

It would also be most helpful for the ‘lay public’ to have your personal assessment of the 
quality and effectiveness of the implementation. Therefore, could you please indicate in each 
section to what extent, in your opinion, the national implementation is satisfactory or whether 
there are extensive gaps or mistakes in implementation? Please note that this assessment is not 
about whether there are problems beyond the areas covered by EU gender equality law as it 
stands now. For reasons of space we are obliged to leave out considerations regarding what 
should be addressed by national and/or EU legislation beyond the existing scope of EU law. 

1. Implementation of central concepts 

Please  discuss  how  the  main  concepts  of  EU  gender  discrimination  law  have  been 
implemented  in  your  country.  If  relevant,  you  may  also  refer  to  the  relevant  constitutional 
provisions  on  equality  and  non-discrimination.  Please  focus  on  the  main  definitions.  If  a 
certain Act (e.g. when implementing the social security directive) uses different definitions, 
mention this briefly. An indication of how the concepts are interpreted by the courts is also an 
important element. 
The concepts concerned here are the following:  

•  direct discrimination; 
• 
•  positive  action:  EU  law  is  merely  permissive  in  this  regard  -  is  positive  action 

indirect discrimination; 

expressly permitted or required in national legislation, and how is it framed?; 
instruction to discriminate; 

• 
•  harassment and sexual harassment. 

id=WFSimpleSearch&DefaultButton=findSimple&WFSimpleSearch_NameOrID=Gender+Equality+Rules&S
earchConditions=&SearchType=1&findSimple.x=18&findSimple.y=12, accessed 11 April 2013. 

719  Acts of Parliament or other delegated but important legislation. 

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Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

Preliminary remark 2:  
What follows below is roughly structured along the lines of the various directives. The most 
relevant  provisions  are  mentioned  for  your  convenience  (please  note  that  additional  and/or 
other provisions might also be relevant for your country). 
The  central  concepts  are  excluded  here,  as  they  are  already  addressed  in  Section  1.  In 
addition, enforcement is addressed in Section 7. 
Therefore, please do not discuss the aspects covered by Sections 1 and 7 in Sections 2 to 6. 
Avoid  repetition  as  much  as  possible.  Please  briefly  describe  landmark  cases  where  you 
consider them relevant.  

2.  Equal  pay  and  equal  treatment  at  work  (Article  157  TFEU  and  Recast  Directive 
2006/54) 

Please  discuss  the  issue  of  equal  pay  (Article  157  TFEU  and  Article  4  Recast  Directive) 
regarding the following: 

• 
• 

• 

the scope of the notion of ‘pay’ as implemented in your country; 
the  formulation  of  the  equal  pay  obligation  in  the  legislation  of  your  country 
(provisions on equal work/work of the same value; job classification schemes; work 
of  equal  value;  wage  transparency  measures,  etc.).  Please  also  describe  relevant 
national (landmark) case law on these issues; 
the justifications for differences in pay that are accepted under legislation and/or case 
law. 

Please discuss the issues of access to work and working conditions (Articles 14, 3 and 28(1) 
of the Recast Directive) regarding the following: 

the personal and substantive scope of the relevant legislation (and case law); 

• 
•  whether  and  to  what  extent  the  exceptions  in  the  Recast  Directive  have  also  been 

adopted in national law. 

Please discuss the issue of occupational pension schemes (Articles 5-9 and Article 12 Recast 
Directive) regarding the following:  

• 

the personal and substantive scope of the relevant legislation (and case law). Please 
pay  attention  to  the  exclusions  from  the  material  scope  in  Article  8  of  the  Recast 
Directive; 

•  whether and to what extent the exceptions have been implemented; 
•  whether there are examples of discrimination as mentioned in Article 9 of the Recast 

Directive. 

Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

261 

 
 
 
 
 
 
 
3.  Pregnancy  and  maternity  protection,  parental  leave  and  adoption  leave  (Directive 
92/85, relevant provisions of the Recast Directive and Directive 2010/18) 

Please discuss:  

• 

• 

the general regime of protection of pregnant women and women who have recently 
given birth (leave, benefits during leave, protection against dismissal, right to return 
to the same  or comparable job etc.) and new elements introduced in the transposition 
of these directives by Directive 2010/18/EU; 
the  general  regime  of  maternity,  parental  leave,  adoption  leave,  paternity  leave  and 
time off. 

Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

4. Statutory schemes of social security (Directive 79/7) 
Please discuss:  

the personal and substantive scope of the relevant legislation (and case law); 

• 
•  whether and to what extent the exceptions in Directive 79/7 have been implemented.    

Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

5. Self-employed workers (Directive 2010/41 and some relevant provisions of the Recast 
Directive) 

Please discuss: 

• 
• 

• 

the personal and substantive scope of the relevant legislation (and national case law); 
the issues of social protection (Article 7 of Directive 2010/41) and maternity benefits 
(Article 8 of Directive 2010/41); 
the  exceptions  regarding  the  self-employed  (Articles  10  and  11  of  the  Recast 
Directive). 

Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

6. Goods and services (Directive 2004/113) 

Please discuss: 

• 

•  how  Directive  2004/113  has  been  implemented  in  your  country,  in  particular 
concerning its substantive scope (Article 3). Describe national case law if relevant; 
the extent and manner in which your country, in national legislation, provides for the 
exceptions stated in Directive 2004/113, in particular Article 5(2) in the light of the 
Test-Achats  case.  Please  report  on  the  implementation  of  the  Test-Achats  ruling  in 
national legislation. 

262  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

7. Enforcement and compliance aspects (horizontal provisions of all directives)  

Preliminary remark 3:  
If  relevant  and  helpful,  please  indicate  in  your  answer  the  differences  found  regarding  the 
relevant  directives  (e.g.  access  to  courts  will  often  involve  different  courts  for  private 
employment  (civil  law),  civil  service  (administrative  law)  or  statutory  social  security 
(administrative law) etc.).     

Please discuss: 

•  how  the  provisions  on  victimisation  are  implemented  in  national  legislation  and 

interpreted in case law; 

•  how the provisions on the burden of proof have been given effect in legislation and 

case law; 

•  what  type  of  remedies  and  sanctions  (e.g.  compensation,  reinstatement,  criminal 
sanctions, administrative fines etc.) exist in your country for breaches of EU gender 
equality law, and whether, in your opinion, they meet the standards of being effective, 
proportionate and dissuasive;  

•  whether the access to courts is safeguarded for alleged victims of discrimination, and 

for anti-gender discrimination interest groups or other legal entities; 

•  whether your country has a gender equality body (or a more general body) that seeks 

to implement the requirements of EU law; 

•  whether  the  social  partners  play  an  important  role  in  compliance  with  and 
enforcement of gender equality law, and whether there are any legislative provisions 
in this respect; 
to  what  extent  your  country  has  collective  agreements  that  are  used  as  means  to 
implement  EU  gender  equality  law.  Please  indicate  the  legal  status  of  collective 
agreements  in  your  country  (binding/non-binding,  usually  declared  to  be  generally 
applicable or not).  

• 

Reminder:  

•  Please  do  not  forget  to  indicate  if,  in  your  national  law,  provisions  exceed  the 

requirements of EU law; 

•  Please  do  not  forget  to  indicate  whether,  in  your  opinion,  the  implementation  is 

satisfactory or whether there are extensive gaps or important mistakes. 

8. Overall assessment  
Please give your overall assessment of the implementation of the EU gender equality acquis 
in your Member State. Please do not forget to indicate whether, in your opinion, the overall 
implementation is satisfactory or whether there are extensive gaps or important mistakes. 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

263 

 
 
 
   
 
 
 
 
 
Annex II 
EU Directives 

–   Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of 

the Member States relating to the application of the principle of equal pay for men and 
women OJ L 45 of 19 February 1975, p. 19-20.  

–   Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle 
of equal treatment for men and women as regards access to employment, vocational 
training and promotion, and working conditions OJ L 39 of 14 February 1976, p. 40-42.  

–   Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of 
the principle of equal treatment for men and women in matters of social security OJ L 6 
of 10 January 1979, p. 24-25.  

–   Council Directive of 24 July 1986 on the implementation of the principle of equal 

treatment for men and women in occupational social security schemes (86/378/EEC)  
OJ L 225 of 12 August 1986, p. 40-43.  

–   Council Directive 86/613/EEC of 11 December 1986 on the application of the principle 

of equal treatment between men and women engaged in an activity, including agriculture, 
in a self-employed capacity, and on the protection of self-employed women during 
pregnancy and motherhood OJ L 359 of 19 December 1986, p. 56-58.  

–   Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to 
encourage improvements in the safety and health at work of pregnant workers and 
workers who have recently given birth or are breastfeeding (tenth individual Directive 
within the meaning of Article 16 (1) of Directive 89/391/EEC) OJ L 348 of 28 November 
1992, p. 1-8.  

–   Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental 
leave concluded by UNICE, CEEP and the ETUC OJ L 145 of 19 June 1996, p. 4-9.  

–   Council Directive 96/97/EC of 20 December 1996 amending Directive 86/378/EEC on 

the implementation of the principle of equal treatment for men and women in 
occupational social security schemes OJ L 46 of 17 February 1997, p. 20-24.  

–   Directive 2002/73/EC of the European Parliament and of the Council of 23 September 

2002 amending Council Directive 76/207/EEC on the implementation of the principle of 
equal treatment for men and women as regards access to employment, vocational training 
and promotion, and working conditions OJ L 269 of 5 October 2002, p. 15-20.  

–   Council Directive 2004/113/EC of 13 December 2004 implementing the principle of 
equal treatment between men and women in the access to and supply of goods and 
services OJ L 373 of 21 December 2004, p. 37-43.  

–   Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on 

the implementation of the principle of equal opportunities and equal treatment of men 
and women in matters of employment and occupation (recast) OJ L 204 of  26 July 2006, 
p. 23-36.  

264  

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–   Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework 

Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and 
ETUC and repealing Directive 96/34/EC OJ L 68 of 18 March 2010, p. 13-20.  

–   Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on 
the application of the principle of equal treatment between men and women engaged in 
an activity in a self-employed capacity and repealing Council Directive 86/613/EEC 
OJ L 180 of 15 July 2010, p. 1-6.  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

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Annex III 
National legislation 

AUSTRIA 

Daily updated legislation, legislative announcements and journals, and court decisions are 
available in German on at: http://www.ris.bka.gv.at; initiatives for legislation and other 
parliamentary materials at: http://www.parlinkom.gv.at; and equality bodies’ decisions at 
http://www.bka.gv.at/site/5555/default.aspx.  
All Laender legislation can be viewed at: http://www.chancen-gleichheit.at/NR/rdonlyres/
E502F419-EA00-434C-899C-AB77573834C4/0/BrochureEqualOpportunitiesEqual
TreatmentLegislationinAustria.pdf, all accessed 11 November 2014.   
–  Federal Constitution Act 1920 as amended by OJ No. 68/1998 and OJ No. I 1/2008 
–  Federal Budget Act 2013, OJ No. I 139/2009 
–  Equal Treatment Act, OJ I 66/2004 as amended by OJ Nos. I 82/2005, I 98/2008, 

I 7/2011and I 107/2013  

–  Federal Equal Treatment Act, OJ I 65/2004 as last amended by OJ Nos. I 6/2011, 

I 140/2011 and I 120/2012 

–  Civil Servant Act, OJ No. 333/1979 as amended 
–  Contract Public Employees Act, OJ No. 86/1948 as amended 
–  Federal Rural Code, OJ No. 287/1984 as amended  
–  Labour Constitution Act, OJ No. 22/1974 as amended 
–  Maternity Protection Act, OJ No. 221/1979 as amended  
–  Midwife Act, OJ No. 310/1994 as amended by OJ No. 116/1999 
–  Fathers’ Leave Act, OJ No. 651/1989 as amended  
–  Business Support Act OJ No. 359/1982 as amended 
–  Child Care Allowance Act, OJ. No. I 103/2001 as last amended by OJ No. I 117/2013  
–  Constitutional Act on Different Age Limits of Women and Men in Social Insurance, OJ 

No. 832/1992 (expiring in 2033) 

–  Act on the Federal Government’s Reports concerning the Reduction of Women’s 

Disadvantages, OJ No. 837/1992, expiring in 2018 

–  Occupational Pensions Act, OJ No. 282/1990 as amended  
–  Pensions Act 1965 OJ No. 340/1965 as last amended by OJ No. I 86/2013  
–  General Pensions Act OJ No. I 142/2004 as last amended by OJ No. I 138/2013 
–  General Social Insurance Act OJ No. 189/1955 as amended  
–  Unemployment Insurance Act 1977, OJ No. 609/1977 as amended  
–  Trade (Industry) Social Insurance Act OJ No. 560/1978 as amended 
–  Chambers of Commerce Act 1998 OJ No. 103/1998 as amended 
– 
–  Farmers’ Social Insurance Act OJ No. 559/1978 as amended 
–  Social Insurance of Self-Employed Persons in Free Professions Act OJ No. 624/1978 as 

Income Tax Act OJ No. 400/1988 

amended 

–  Artists’ Social Insurance Fund Act, OJ I 2001/131 as amended 
–  Act on the Regulation of Businesses 1994, OJ No. 194 as amended 
–  General Civil Code, Justice Act Collection No. 946/1811 as amended 
–  Act on Insurance Contracts 1958, OJ No. 2/1959 as last amended by OJ No. I 12/2013  
– 
–  Equal Treatment Commission and Equal Treatment Ombud Act, OJ No. I 2004/66 as 

Insurance Monitoring Act, OJ No. 569/1978 as amended  

amended by OJ Nos. I 82/2005, I 2/2008, I 98/2008, I 7/2011and I 107/2013  

–  Labour and Social Court Act, OJ No. 194/1985 as last amended by OJ No. 135/2011 

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BELGIUM 

The following are all available in French and Dutch at http://www.juridat.be, accessed 
24 May 2014. 
–  Working Conditions Act of 16 March 1971 
–  Well-Being at Work Act of 4 August 1996 
–  Gender Act of 10 May 2007 
–  Act of 22 April 2012 Aimed at Fighting the Pay Gap between Men and Women 

The following is available in French and Dutch at http://www.cnt-nar.be, accessed 24 May 
2014. 
–  Collective Agreement No. 25 of 15 October 1975 Concerning Equal Pay of Male and 

Female Workers 

BULGARIA 

All webpages accessed 5 June 2013. 
–  Law on Protection from Discrimination (Закон за защита от дискриминация), of 
1 January 2004, available in Bulgarian at http://lex.bg/laws/ldoc/2135472223 
–  Labour Code (Кодекс на труда), of 1 January 1987, the Bulgarian version can be 

accessed on http://lex.bg/laws/ldoc/1594373121 

–  Code of Social Insurance (Кодекс за социално осигуряване) of 1 January 2000, 

available in Bulgarian at http://lex.bg/laws/ldoc/1597824512 

–  Civil Procedural Code (Граждански процесуален кодекс), of 1 March 2008, available 

in Bulgarian at http://lex.bg/laws/ldoc/2135558368 

–  Administrative Procedural Code (Административнопроцесуален кодекс) of 12 July 

2006, available in Bulgarian at http://www.lex.bg/bg/laws/ldoc/2135521015 

CROATIA: 

–  Gender Equality Act (Zakon o ravnopravnosti spolova) Official Gazette of the Republic 

of Croatia No. 82/08  

–  Anti-Discrimination Act (Zakon o suzbijanju diskriminacije) Official Gazette of the 

Republic of Croatia Nos 85/08 and 112/12 

–  Act on Forms of Same-Sex Cohabitation (Zakon o istospolnim zajednicama) Official 

Gazette of the Republic of Croatia No. 116/2003 

–  Labour Act (Zakon o radu) Official Gazette of the Republic of Croatia Nos. 149/09 and 

61/11 

–  Act on Maternity and Parental Benefits (Zakon o rodiljnim i roditeljskim potporama) 
Official Gazette of the Republic of Croatia Narodne novine Nos. 85/08, 110/08, 34/11 
and 54/13 

–  Occupational Health and Safety Act (Zakon o zaštiti na radu) Official Gazette of the 

Republic of Croatia Nos. 59/96, 94/96, 114/03, 86/08, 75/09 and 143/12 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

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CYPRUS: 

–  Constitution of the Republic of Cyprus 1960 as amended by Laws Nos. 95/89, Official 

Gazette 2419 of 17 June 1989; 106(I)/1996, Official Gazette 3102 of 29 November 1996; 
115(I)/1996, Official Gazette 3110 of 28 December 1996; 104(I)/2002, Official Gazette 
3620 of 05 July 2002; 127(I)/2006, Official Gazette 4090 of 28 July 2006; and last 
amendment Law No. 51(I)/2010 

–  Equal Treatment for Men and Women as Regards Access to Employment and Vocational 

Training Law No. 205(I)/2002, Official Gazette 3658 of 6 December 2002; No. 
176(I)/2007; and last amendment Law No. 39(I)/2009  

–  Administrative Regulations No. 176/2009, Official Gazette 4351 of 24 April 2009 
–  Equal Pay between Men and Women for the Same Work or for Work to which Equal 

Value is Attributed Law No. 177(I)/2002, Official Gazette 3638 of 27 September 2002, 
Law No. 193(I)/2004, last amendment Law No. 38(I)/2009 

–  Maternity Protection Law No. 100(I)/1997, Official Gazette 3207 of December 1997; 
Law No. 45(I)/2000 and the Maternity Protection (Amendment) Law No. 64(I)/2002, 
which entered into force on 31 May 2002, Official Gazette 3608 of 31 May 2002; 
amendment Laws Nos. 8(I)/2008 Official Gazette 4189 of 18 April 2008; No. 43(I)/2008 
Official Gazette 4170 of 04 July 2008; and last amendment Law No. 70(I)/2011 
–  The Parental Leave and Leave on Grounds of Force Majeure Law of 2002, Law No. 

69(I)/2002, which entered into force on 1 January 2003, Official Gazette 3610 of 7 June 
2002, as amended by Law Nos. 111(I)/2007, 11(I)/2010 and 47(I)/2012  

–  Act on Persons with Disabilities Law No. 127(I)/2000, as amended by Law Nos. 

57(I)/2004, 72(I)/2007, and 102(I)/2007 

–  The Social Insurance Law 1980-2009 Law No. 41/1980; the Social Insurance 

(Amendment) (No. 2) Law No. 51(I)/2001, Official Gazette 3487 of 6 April 2001, last 
amendment Law No. 22(I)/2009, Official Gazette 4198 of 20 March 2009; and 
amendment Law Nos. 93(I)/2009, 112(I)/2009 and 59(I)/2010 

–  Equal Treatment for Men and Women in Occupational Social Insurance Schemes Law 

No. 133(I)/2002, which entered into force on 1 January 2003, Official Gazette 3623 of 19 
July 2002, last amendment Law No. 40(I)/2009 

–  The Provident Funds (Amendment) Law of 2002, Law No. 130(I)/2002, which entered 
into force on 1 January 2003, Official Gazette 3623 of 19 July 2002 (included in the 
Provident Funds Law 1981-2002, last amendment No. 208(I)/2012)  

–  Establishment, Registration, Operation and Supervision of the Occupational Retirement 

Benefits Fund Law No. 146(I)/2006, Official Gazette 4097 of 17 November 2006, last 
amendment Law No. 208(I)/2012  

–  Equal Treatment of Men and Women as Regards Access to and Supply of Goods and 

Services Law No. 18(I)/2008, Official Gazette 4162 of 2 May 2008, last amendment Law 
No. 89(I)/2013   

CZECH REPUBLIC 

The following texts can be accessed at the official website of the Czech Collection of Laws, 
http://aplikace.mvcr.cz/sbirka-zakonu/, accessed 5 September 2013.  
–  Act No. 198/2009 Coll. on Equal Treatment and Legal Instruments of Protection Against 

Discrimination 

–  Act No. 262/2006 Coll. containing the Labour Code 
–  Act No. 435/2004 Coll. on Employment 
–  Act No. 187/2006 Coll. on Sickness Insurance  
–  Act No. 155/1995 Coll. on Pension Insurance 
–  Act No. 426/2011 Coll. on Retirement Savings 
–  Act No. 427/2011 Coll. on Supplementary Pension Savings 
–  Act No. 266/2006 Coll. on Employees’ Accident Insurance 

268  

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–  Act No. 218/2002 Coll. on the Service of Officials in Public Administration and on 
Remuneration of These Employees and Other Employees in Public Administration 

–  Act No. 221/1999 Coll. on Professional Soldiers 
–  Act No. 361/2003 Coll. on the Service Relationship of Members of the Security Corps 

DENMARK 

All Danish legislation is published electronically in Danish by the Danish State in the 
Retsinformation www.retsinfo.dk accessed 5 September 2013, where it is available free of 
charge (tax-financed). The Danish Official Journal (Lovtidende) is no longer published on 
paper but only electronically. It contains links to the Retsinformation. 
–  Equal Pay Act, Consolidation Act No. 899 of 5 September 2008  
–   Gender Equality Act, Consolidation Act No. 1678 of 19 December 2013  
–  Maternity, Paternity and Parental Leave and Benefit Act, Consolidation Act No. 872 of 

28 June 2013 

–  Act on Reimbursement of Pregnancy (etc.) Payments in the Private Sector, Act No. 417 
of 8 May 2006, later amended by Act No. 288 of 2010; Act No. 598 of 2011; Act No. 
326 of 2012, Paragraph 16; Act No. 529 of 2012; Act No. 1347 of 2012, Paragraph 6; and 
Act No. 596 of 2013, Paragraph 13 

–  Act on Equal Treatment between Men and Women in Insurance, Pension and Similar 

Matters, Consolidation Act No. 775 of 29 August 2001, later amended by Act No. 523 of 
2007, Paragraph 43; Act No. 517 of 2008, Paragraph 11; Act No. 133 of 24 February 
2009 (which changed the title of the Act into the present title, Act on Equal Treatment 
between Men and Women in Insurance, Pension and Similar Matters); Act No. 133 of 
2009, Paragraph 2; Act No. 1231 of 2012, Paragraph 48; and Act No. 1287 of 2012, 
Paragraph 6  

ESTONIA 

All Estonian legislation and case law is published electronically in Estonian by the State 
Gazette (Riigi Teataja) at: https://www.riigiteataja.ee (unofficial English translation available 
at: https://www.riigiteataja.ee/en/), accessed 1 June 2014.  
–  Employment Contracts Act, RT I 2009, 5, 35  
–  Equal Treatment Act (ETA), RT I 2008, 56, 315 
–  Gender Equality Act (GEA), RT I 2004, 27, 181 
–  Health Insurance Act (HIA), RT I 2002, 62, 377  
– 
–  Occupational Health and Safety Act (OHSA), RT I 1999, 60, 616 
–  Parental Benefits Act (PBA), RT1 I 2003, 82, 549 
–  Public Service Act (PSA), RT I, 6 June 2012, 11 
–  The Regulation of the Government of the Republic of 10 June 2010, No. 71 ‘The Statute 

Insurance Activities Act (IAA), RT I 2004, 90, 616  

of the Gender Equality and Equal Treatment Commissioner and the Chancellery’, RT I 
18 June 2010, 33, 170 

–  Unemployment Insurance Act, RT I 2001, 59, 359 

FINLAND 

–  Act on Equality Between Women and Men (Laki naisten ja miesten välisestä tasa-

arvosta), 609/1986 

–  Act on Equality Ombudsman and Equality Board (Laki tasa-arvovaltuutetusta ja tasa-

arvolautakunnasta), 610/1986  

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FRANCE 

The following texts can are available at the Legifrance website at 
http://www.legifrance.gouv.fr/:, accessed 11 September 2013.  
–  Act No. 2011-103, 27 January 2011, relating to a Balanced Participation Between Men 

and Women on Company Boards, JO No. 23, 28 January 2011, p. 1680  

–  Act No. 2011-334, 29 March 2011, on the Defender of Rights, JO No. 75, 30 March 

2011, p. 5504  

–  Act No. 2010-1330, 9 November 2010, on Reform on Pensions, JO No. 261, 

19 November 2010, p. 20034  

–  Act No. 2008-496, 27 May 2008, implementing the various directives on discrimination, 

JO No. 123, 28 May, p. 8801 

–  Act No. 2007-1774, 17 December 2007 implementing various European provisions in 

economic and financial fields, JO No. 293, 18 December 2007 p. 20354 

–  Act No. 2006-340 of 23 March 2006 on Equal Pay between Men and Women, JO No. 71, 

24 March 2006 p. 4440 

–  Act No. 2004-1486 of 30 December 2004 creating the High Authority Against 
Discrimination and for Equality, JO No. 304, 31 December 2004, p. 22567 

–  Act No. 2003-775 of 21 August 2003 Reforming Pensions, JO No. 193, 22 August 2003, 

p. 14310 

–  Act No. 2001-1066 of 16 November 2001, concerning the fight against discrimination, 

JO No. 267, 17 November 2001, p. 18311  

–  Act No. 2001-397 of 9 May 2001, on Equality Between Men and Women, JO No. 108, 

10 May 2001, p.7320 

–  Act No. 83-635 of 13 July 1983, ‘Roudy’ Act, JO 14 July 1983, p. 2176 
–  See also the Labour Code, Articles L.1131-1 to L.1134-4 concerning discrimination; 

Articles L.1141-1 to L.1144-3 concerning equality between men and women; Articles 
L.1151-1 to L.1155-4 concerning harassment; Articles L.1225-1 to L.1225-72 concerning 
pregnancy, maternity protection, and maternity, parental and paternity leave; and Articles 
L.3221-1 to L.3222-2 concerning equal pay between women and men 

–  See also the Criminal Code, Articles 225-1 to 225-4; Article 222-32; Article 222-33-2; 

and Article 432-7 

GERMANY 

All websites accessed 5 September 2014. 
–  General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz) of 14 August 
2006, Official Journal (Bundesgesetzblatt BGBl), part I, p. 1897, http://www.gesetze-im-
internet.de/agg/BJNR189710006.html  

–  Betriebsrentengesetz (Act on Occupational Pension Schemes) of 19 December 1974, 
Official Journal (Bundesgesetzblatt BGBl), part I p. 3610, http://www.gesetze-im-
internet.de/betravg/BJNR036100974.html.  

–  Maternity Protection Act (Mutterschutzgesetz) of 24 January 1952, Official Journal 

(Bundesgesetzblatt BGBl), part I p. 2318, http://www.gesetze-im-internet.de/
muschg/BJNR000690952.html  

–  Federal Law on Parental Allowance and Parental Leave (Bundeselterngeld–  und 

Elternzeitgesetz) of 5 December 2006, Official Journal (Bundesgesetzblatt BGBl), part I 
p. 2748, http://www.gesetze-im-internet.de/beeg/BJNR274810006.html  

–  SEPA-accompanying Act (SEPA-Begleitgesetz) of 3 April 2013, Official Journal 

(Bundesgesetzblatt BGBl), part I p. 610, http://www.bgbl.de  

270  

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GREECE 

–  The Constitution, Articles 4(2) on gender equality; 21(1) on protection of the family, 

marriage, maternity and childhood; 22(1)(b) on equal pay; 116(2) on positive measures. 
Available at the Greek Parliament’s website (translation in English) at 
http://www.hellenicparliament.gr/en, accessed 5 September 2013  

–  Act 4097/2012 ‘Implementation of the Principle of Equal Treatment of Men and Women 
Engaged in an Activity in a Self-Employed Capacity – Harmonisation of legislation with 
Directive 2010/41/EU of the European Parliament and the Council’, OJ A 
235/03.12.2012  

–  Act 4075/2012, Articles 48-54 ‘Incorporation into Greek Law of Directive 2010/18/EU 
of the Council of the EU Implementing the Revised Framework Agreement on Parental 
Leave Concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and Repealing 
Directive 96/34/EC’, OJ A 89/11.04.2012 

–  Act 3896/2010 ‘Implementation of the Principle of Equal Treatment of Men and Women 

in Matters of Employment and Occupation  

–  Harmonisation of Existing Legislation with Directive 2006/54/EC of the European 

Parliament and the Council’, OJ A 207/ 08.12.2010 

–  Act 3863/2010 ‘New Social Security System and Related Provisions, Regulation of 

Employment Relationships’, OJ A 115/15.7.2010 

–  Act 3865/2010 ‘Reform of the Pension System of the State and Related Provisions’, OJ 

120/21.7.2010 

–  Act 3769/2009 ‘Implementation of the Principle of Equal Treatment of Men and Women 
Regarding Access to Goods and Services and Their Supply’, OJ A 105/01.07.2009 
–  Act 3528/2007 ‘Code on the Status of Civil Servants and Employees of Legal Persons 
Governed by Public Law’ (Κώδικας Κατάστασης Δημόσιων Πολιτικών Διοικητικών 
Υπαλλήλων και Υπαλλήλων ΝΠΔΔ), OJ Α 26/09.02.2007 

–  Presidential Decree 176/1997 ‘Measures for the Improvement of the Safety and Health at 

Work of Pregnant Workers and Workers Who Have Recently Given Birth or are 
Breastfeeding in Compliance with Directive 92/85/EEC’, OJ A 150/15.07.1997, as 
amended by Decree 41/2003, OJ A 44/21.02.2003 

–  Act 1483/1984 ‘Protection and facilitation of Workers with Family Responsibilities’, as 

amended by Acts 2639/1998, OJ Α 205/02.09.1998; and 4075/2012, OJ A 89/11.04.2012 

–  Act 3655/2008 ‘Administrative and Organisational Reform of the Social Security 

System’, Article 142, OJ A 58/03.04.2008  

HUNGARY 

–  Fundamental Law of Hungary, 25 April 2011 (and its four modifications) 
–  Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities  
–  Act CCXI of 2011 on the Protection of Families 
–  Act I of 2012 on the (new) Labour Code 
–  Act CXCIV of 2011 on Public Servants 
–  Act LXXXIII of 1997 on Compulsory Health Insurance 
–  Act VXXXI of 1997 on Social Security Pensions 
–  Act VXXXII of 1997 on Private Pensions 
–  Act CXVII of 2007 on the Employer’s Pension Scheme 

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ICELAND 

All legislation is available at http://eng.velferdarraduneyti.is, accessed 6 September 2013.  
–  Act on Equal Status and Equal Rights of Women and Men No. 10/2008, 

as amended by Acts No. 162/2010 and No. 126/2011 

–  Act on Maternity/Paternity Leave and Parental Leave No. 95/2000, 

as amended by Acts No. 72/2003, No. 90/2004, No. 129/2004, No. 22/2006, No. 
65/2006, No. 155/2006, No. 167/2006, No. 74/2008, 112/2008, No. 173/2008, No. 
70/2009, No. 97/2009, No. 120/2009, No. 134/2009, No. 162/2010, No. 126/2011, No. 
136/2011 and No. 143/2012 

–  Act on Working Environment, Health and Safety in Workplaces No. 46/1980, 

as amended by Acts No. 15/1986, Act No. 61/1990, Act No. 7/1996, Act No. 52/1997, 
Act No. 83/1997, Act No. 17/2003, Act No. 68/2003, Act No. 90/2004, Act No. 
138/2005, Act No. 88/2008, Act No. 162/2010 and Act No. 126/2011 

–  Act on Payments to Parents of Chronically Ill or Severely Disabled Children No. 
22/2006, as amended by Acts No. 158/2007, No. 65/2010, No. 162/2010 and No. 
126/2011  

ITALY 

–  Act No. 65/2014 on Amendments to Act No. 18/79 on the election of Italian members of 
the  European  Parliament,  as  regards  gender  balance  and  transitory  provisions  for  the 
2014 elections, OJ No. 95 of 24 April 2014 

–  Decree No. 149/2013 on the Revocation of Direct Public Financing of Parties and on the 
Regulations  of  Voluntary  and  Indirect  forms  of  Financing,  converted  by  Act  No. 
13/2014, OJ No. 47 of 26 February 2014 

–  Decree No. 76/2013, on Urgent Regulations on Occupation, Social Cohesion, VAT and 
other Financial Measures, converted by Act No. 99/2013, OJ No. 150 of 22 August 2013 
–  Act No. 228/2012, Budgeting Regulations, OJ No. 302 of 29 December 2012, Ordinary 

Supplement No. 212 

–  Act No. 215/2012 on the Promotion of Gender Balance in Local Government Bodies and 
on the Promotion of Equal Opportunities in the Composition of Public Competition 
Commissions in the Public Sector, OJ No. 288 of 11 December 2012 

–  Act No. 92/2012, Reform of the Labour Market in a Perspective of Growth, OJ – 

Ordinary Supplement No. 136 of 3 July 2012 

–  Act No. 214/2011, Growth, Equity and Consolidation of Public Spending, OJ No. 284, 

Supplement No. 251 of 6 December 2011 

–  Act No. 120/2011, Appointment of Managing Directors and Auditors of Listed 
Companies and State Subsidiary Companies, OJ No.174 of 28 July 2011 

–  Decree No. 5/2010, Implementation of Directive 2006/54/EC, OJ No. 29 of 5 February 

2010 

–  Act No. 101/2008, Implementation in an Act, with modifications; Decree No. 59/2008 on 
the Implementation of EU Obligations and Court of Justice Decisions, published in OJ 
No. 132 of 7 June 2008 

–  Decree No. 196/2007, Implementation of Directive 2004/113/EC Implementing the 

Principle of Equal Treatment between Men and Women in the Access to and Supply of 
Goods and Services, OJ No. 261 of 9 November 2007 

–  Decree No. 116/2007, Regulations of the Commission for Equal Opportunities Between 
Men and Women (following Article 29 of Decree No. 223/2006), as converted by Act 
No. 248/2006, OJ No. 177 of 1 August 2007 

–  Decree No. 198/2006, Code of Equal Opportunities between Men and Women under 

Article 6 of Decree No. 246/2006, OJ No. 125 of 31 May 2006 

–  Decree No. 145/2005, implementing EU Directive 2002/73/EC amending Council 

Directive 76/207/EEC on the Implementation of the Principle of Equal Treatment for 

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Men and Women as Regards Access to Employment, Vocational Training, Promotion 
and working conditions, OJ No. 173 of 27 July 2005 

–  Article 57 of Decree No. 165/2001 on Work relationships in the Public Sector, OJ No. 

106 (S.O. No. 112) of 9 May 2001 

–  Decree No. 151/2001 on Sustaining Motherhood and Fatherhood, OJ No. 96 of 26 April 

2001 

–  Act No. 53/2000, on Sustaining Motherhood and Fatherhood, Time for Care and for 

Vocational Training, and Coordinating Hours of the Public Services of Towns, OJ No. 60 
of 13 March 2000 

–  Decree No. 645/1996, implementing EU Directive 92/85/EEC on the Introduction of 
Measures to Encourage Improvements in the Safety and Health at Work of Pregnant 
Workers and Workers Who Have Recently Given Birth or are Breastfeeding, OJ No. 299 
of 21 December 1996  

IRELAND 

All Acts from 1922-2013 and statutory instruments (from 1922-2013) are available at: 
http://www.irishstatutebook.ie/home.html, accessed 7 June 2014. 
Consolidated employment legislation is available on www.westlaw.ie; a commercial service. 
–  The  Employment  Equality  Act  1998  (in  effect  18  October  1998)  as  amended  by  the 
Equality Act 2004 (in effect 18 July 2004), the Civil Law (Miscellaneous Provisions) Act 
2008, the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, 
and the Civil Law (Miscellaneous Provisions) Act 2011 (the Employment Equality Acts 
1998-2011),  the  Irish  Human  Rights  and  Equality  Commission  Act  2014  (not  yet 
commenced). 

–  The Equal Status Act 2000 (in effect 25 October 2000), as amended by the Intoxicating 
Liquor  Act  2003,  the  Equality  Act  2004  (in  effect  18  July  2004),  the  Civil  Law 
(Miscellaneous  Provisions)  Act  2008,  the  Civil  Partnership  and  Certain  Rights  and 
Obligations  of  Cohabitants  Act  2010,  Civil  Law  (Miscellaneous  Provisions)  Act  2011, 
and the Equal Status (Amendment) Act 2012 (Equal Status Acts 2000-2012). 

–  The  Maternity  Protection  of  Employees  Act  1994,  as  amended  by  the  Maternity 
Protection  of  Employees  (Amendment)  Act  2004  (in  effect  18  October  2004)  (the 
Maternity Protection Acts 1994 and 2004), and as amended by the Maternity Protection 
Act 1994 (Extension of Periods of Leave) Order 2006 (SI No. 51 of 2006). 

–  The  Adoptive  Leave  Act  1995  (in  effect  20  March  1995)  as  amended  by  the  Adoptive 
Leave  Act  2005  (the  Adoptive  Leave  Acts  1995  and  2005)  and  as  amended  by  the 
Adoptive  Leave  Act  1995  (Extension  of  Periods  of  Leave)  Order  2006  (SI  No.  52  of 
2006). 

–  The  Parental  Leave  Act  1998  (in  effect  3  December 1998) as amended  by  the Parental 
Leave  (Amendment)  Act  2006  (in  effect  18  May  2006)  as  amended  by  the  Civil  Law 
(Miscellaneous  Provisions)  Act  2008  and  the  European  Union  (Parental  Leave) 
Regulations 2013 SI No. 81 of 2013 (Parental Leave Acts 1998-2006). 

–  The Social Welfare (Consolidation) Act 2005 (as amended). 
–  The Pensions Act 1990 (equal treatment provisions in effect 1 January 1993) replaced by 
the  Social  Welfare  (Miscellaneous  Provisions)  Act  2004  (and  as  amended),  Social 
Welfare and Pensions Act 2014 (Pensions Acts 1990-2014),  

–  The Carer’s Leave Act 2001 (as amended). 
–  The Employment Equality Act (Code of Practice) (Harassment) Order 2012, SI No. 208 

of 2012.  

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LATVIA 

–  The Labour Law (Darba likums), OG No. 105 6 July 2001 
–  The Law on Support of Unemployed Persons and Jobseekers (Bezdarbnieku un darba 

meklētāju atbalsta likums), OG No. 80, 29 May 2002 

–  The Law on Prohibition of Discrimination against Natural Persons – Performers of 

Economic Activities (Fizisko personu – saimnieciskās darbības veicēju – diskriminācijas 
aizlieguma likums), OG No. 199, 19 December 2012 

–  The Education Law (Izglītības likums), OG No. 343/344, 17 November 1998 
–  The Law on the Protection of Consumer Rights (Patērētāju tiesību aizsardzības likums), 

OG No. 104/105, 1 April 1999, respective amendments OG No. 104, 9 July 2008 
–  The Law on Social Security (Likums ‘Par sociālo drošību’), OG No. 144, 21 September 

1995 

–  The Law on Insurance Companies and their Supervision (Apdrošināšanas sabiedrību un 

to uzraudzības likums), OG No. 188/189, 30 June 1998 

LIECHTENSTEIN 

The following legislation is also available at 
http://www.gesetze.li/Seite1.jsp?clearsvs=true&clearlrs=true (authentic version since 
1 January 2013), accessed 22 May 2014. 
–  Act on Gender Equality Law (Gleichstellungsgesetz, GLG), LGBl 1999 No. 96, as 

amended by LGBl 2011 No. 212 

–  Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), LGBl.1967 No. 34 (see the 

currently relevant version) 

–  Labour Code (Arbeitsgesetz), LGBl 1967 No. 6 
–  Sickness Insurance Act (Krankenversicherungsgesetz, KVG), LGBl 1993 No. 95 
–  Occupational Schemes Act (Gesetz über die betriebliche Personalvorsorge, BPVG), 

LGBl 2007 No. 13 
Invalidity Insurance Act (Invalidenversicherung, IVG), LGBl 2006 No. 244 

– 
–  Old-Age Insurance Act (Alters-  und Hinterlassenenversicherung, AHVG), LGBl 2006 

No. 24 

–  Accident Insurance Act (Unfallversicherung, UVersG), LGBl 2006 No. 89 
–  Unemployment Insurance Act (Arbeitslosenversicherung, ALVG), LGBl 2006 No. 155 
–  Marriage Act (Ehegesetz), LGBl 1993 No. 53 

LITHUANIA 

–  Labour Code of 4 June 2002, State Gazette 2002, No. 64-2569 
–  Equal Opportunities Act for Women and Men of 1 December 1998, State Gazette 1998, 

No. 112-3100 

–  Equal Opportunities Act of 18 November 2003, State Gazette 2003, No. 114-5115. 
–  Law on Insurance of 16 December 2012, State Gazette 2012, No. 145-6816 

Former Yugoslav Republic of MACEDONIA  

–  Law on Equal Opportunities for Women and Men, Official Gazette of the Republic of 

Macedonia No. 6/2012 

–  Law on Prevention of and Protection against Discrimination, Official Gazette of the 

Republic of Macedonia No. 50/2010 

–  Electoral Law, Official Gazette, No. 40/2006, last changes 2014  
–  Labour Law, Official gazette No. 62/2005, last changes 2013 

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–  Law on social security, Official gazette No. 79/2009, last changes 2014 
–  Law on amendments of the Law on Employment and Social Protection during 

Unemployment (Employment Law), Official Gazette of the Republic of Macedonia No. 
50/2010 

–  Law on Social Protection, Official Gazette of the Republic of Macedonia No. 79/09 
–  Law on Pension and Disability Insurance, Official Gazette of the Republic of Macedonia 

No. 98/2012 (last change 15/2013) 

–  Law on Employment and Social Protection during Unemployment (Employment Law), 

Official Gazette of the Republic of Macedonia No. 37/97 

–  Law on Child Protection, Official Gazette of the Republic of Macedonia No. 23/2013 
–  Law on Health Insurance, Official Gazette of the Republic of Macedonia, No. 25/2000, 

(last change 16/2013) 

MALTA 

All Acts and Subsidiary Legislation (SL) are available at 
http://www.justiceservices.gov.mt/LOM.aspx?pageid=24, accessed 12 September 2013. 

Employment and Industrial Relations Act, Chapter 452, Laws of Malta 
–  SL 452.78, Parental Leave Entitlement Regulations 
–  SL 452.79, Part-Time Employees Regulations 
–  SL 452.81, Contracts of Service for a Fixed Term Regulations  
–  SL 452.87, Organisation of Working Time Regulations  
–  SL 452.88, Urgent Family Leave Regulations 
–  SL 452.89, Employment and Industrial Relations Interpretation Order  
–  SL 452.91, Protection of Maternity (Employment) Regulations 
–  SL 452.95, Equal Treatment in Employment Regulations 
–  SL 452.97, Extension of Applicability to Service with Government (Part-Time 

Employees) Regulations 

–  SL 452.99, Extension of Applicability to Service with Government (Contracts of Service 

for a Fixed Term) Regulations 

–  SL 452.100, Extension of Applicability to Service with Government (Equal Treatment in 

Employment) Regulations 

–  SL 452.101, Minimum Special Leave Entitlement Regulations 
–  SL 452.102, Extension of Applicability to Service with Government (Parental Leave 

Entitlement Regulations and Urgent Leave) Regulations 

–  SL 452.105, Extension of Applicability to Service with Government (Protection of 

Maternity Employment) Regulations 

–  SL  452.109,  Extension  of  Applicability  to  Service  with  Government  (Employment 

Status) Regulations Act III of 2013  

–  Budget Measures Implementation Act, 2013, Government Gazette of Malta No. 19,090 

of 17 May 2013 
Equality for Men and Women Act, Chapter 456, Laws of Malta 

- 
–  SL 456.01, Access to Goods and Services and their Supply (Equal Treatment) 

Regulations 

–  SL 456.02, Procedure for Investigation Regulations  

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NETHERLANDS 

An overview of all Dutch equal treatment legislation, including links to the various acts, is 
available at http://www.mensenrechten.nl/gelijkebehandelingswetgeving, accessed 14 May 
2013. 
–  Equal Treatment Act Men and Women (ETA), adopted 1 March 1980 
–  General Equal Treatment Act (GETA), adopted 2 March 1994 
–  Civil Code, Articles 7:646-7:649 (prohibiting sex discrimination in employment 

relationships), and 7:670 (2) 

NORWAY 

–  The Gender Equality Act (GEA) (Lov om likestilling mellom kjønnene 

(likestillingsloven)), LOV-2013-06-21-59, in force from 1 January 2014.  

–  The Human Rights Act (Lov om styrking av menneskerettighetenes stilling i norsk rett 

(menneskerettsloven), LOV-1999-05-21-30 

–  The Norwegian Public Service Pension Fund (Lov om Statens Pensjonskasse) 28 July 
1949 No. 26 Paragraph 5; Company defined pensions Act (Foretakspensjonsloven) 24 
March 2000 No. 16 Paragraphs 3-5; and the Defined Contribution-based Pension 
(Innskuddspensjonsloven) 24 November 2000 No. 81 Paragraphs 4-2 

–  The National Insurance Act (NIA) (Lov om folketrygd (folketrygdloven)) LOV -1997-02-

28 No. 19 

–  The Working Environment Act (WEA) (Lov om arbeidsmiljø, arbeidstid og stillingsvern 

mv. (arbeidsmiljøloven)) LOV-2005-06-17-62 

POLAND 

All Laws are available (in Polish) at http://www.sejm.gov.pl/prawo/prawo.html, accessed 
25 August 2013. 
–  Constitution of the Republic of Poland of 2 April 1997 (published in Dziennik Ustaw 

Rzeczpospolitej Polskiej (Journal of Laws of the Republic of Poland; hereafter JoL) 1997 
No. 78 item 48, with amendments 

–  Labour Code Act of 26 June 1974, unified text JoL 1998 No. 21 Item 92, with 

amendments. Amendments largely covered by: 

–  Law of 24 August 2001, JoL 2001 No. 128 Item 1405; 
–  Law of 21 December, JoL 2001 No. 154 Item 1805;  
–  Law of 14 November 2003, JoL No. 213 Item 2081; 
–  Law of 18 October 2006, JoL 2006 No. 217 Item 1587; 
–  Law of 21 November 2008, JoL 2008 No. 223, Item 1460; 
–  Law of 6 December 2008, JoL 2008 No. 234 Item 1654; and 
–  Law of 28 May 2013, JoL 2013 Item 675.  
–  Law of 20 April 2004 on the Promotion of Employment and Institutions of the Labour 

Market, JoL 2004 No. 99 Item 1001 with amendments 

–  Law of 13 October 1998 on the Social Insurance System, JoL 1998 No. 137 Item 887, 

with amendments 

–  Law of 17 December 1998 on Pensions from the Social Insurance Fund, consolidated text 

JoL 2004 No. 39 Item 353, with amendments 

–  Act of 20 December 1990 on Social Security for Farmers, consolidated text JoL 1998 No. 

7 Item 25, with amendments 

–  Law of 20 April 2004 on Occupational Pension Schemes JoL 2004 No. 116 Item 1207, 

with amendments   

–  Law of 25 June 1999 on Cash Social Insurance Benefits in Respect of Sickness and 

Maternity, JoL 2005 No. 31 Item 267, with amendments  

276  

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–  Law of 30 October 2002 on Social Insurance in Respect of Accidents at Work and 

Occupational Diseases, JoL 2002 No. 199 Item 1673, with amendments 

–  Law of 28 November 2003 on Family Benefits, JoL 2003 No. 228 Item 2255, with 

amendments 

–  Law of 27 June 2003 on the Social Pension, JoL 2003 No. 135 Item 1268, with 

amendments  

–  Law of 3 December 2010 on the Implementation of (some) EU Provisions on Equal 

Treatment, JoL 2010 No. 254 Item 1700 

PORTUGAL 

All legislation can be consulted via www.dre.pt, accessed 28 August 2013. 
–  Portuguese Constitution, from 1976 
–  Labour Code (LC), approved by Law No. 7/2009 of 12 February 2009 
–  Law Regarding Employment in Public Service, Law No. 59/2008 of 11 September 2008 
–  New Law regarding Employment in Public Service, Law No. 35/2012 of 20 June 2014 
–  Social Security General Law, Law No. 4/2007 of 16 January 2007 
–  Decree-Law No. 187/2007 of 10 May 2007, Old-age and Invalidity Pensions for 

Dependent Workers 

–  Decree Law No. 328/93 of 25 September 1993, with the changes introduced by Decree-

Law No. 240/96 of 14 December 1996 and by Decree-Law No. 397/99 of 13 October 
1999, Old-age and Invalidity Pensions for Independent Workers 

–  Decree-Law No. 12/2006 of 20 January 2006, and Decree-Law No. 307/97 of 11 

November 1997, Occupational Pensions 

–  Decree Law No. 28/2004 of 4 February 2004, as amended by Decree Law No. 146/2005, 
from 26 August 2005 and by Decree-Law No. 302/2009 of 22 October 2009, Sickness 
Allowance 

–  Law No. 98/2009 of 4 September 2009, Accidents at Work and Occupational Diseases 

(complementary to the Labour Code) 

–  Decree Law No. 89/2009 of 9 April 2009, Family Allowances, Related to Maternity, 
Paternity and Adoption (complementary to the legislation concerning public servants 
with a labour contract)  

–  Decree Law No. 91/2009 of 9 April 2009, Family Allowances, Related to Maternity, 

Paternity and Adoption (complementary to the Labour Code) 

–  Decree Law No. 220/2006 of 3/11/2006, as amended by Decree-Law No. 70/2010 of 16 

June 2010 and by Decree-Law No. 64/2012 of 15 March, Social Protection in Involuntary 
Unemployment 

–  Law No. 14/2008 of 12 March 2008, Gender Equality in Access to and Supply of Goods 

and Services 

–  Law No. 3/2011 of 15 February 2011, Non-discrimination in Independent Work 
–  Decree-Law No. 127/2011 of 31 December 2011, Transfer of Trust Funds Regarding 

Pensions to the State 

–  Council  of  Ministers’  Resolution  No.  19/2012,  of  8  March  2012,  Gender  Equality  in 

Decision Making 

–  Decree-Law  No.  133/2013,  of  3  October  2013,  General  Features  of  Public  Companies 

statute) 

–  Law  No.  67/2013,  of  28  August  2013,  General  Features  of  Administrative  Independent 
Agencies for the Monitoring of Economic Activity in the Private and in the Public Sector 

–  Council of Ministers’ Resolution No. 18/2014, of 7 March 2014, Gender Pay Gap 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

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ROMANIA 

–  Law 202/2002 regarding equal opportunities and equal treatment between women and 

men (Lege nr.202/2002 privind egalitatea de sanse si de tratament intre femei si barbati) 
of 19 April 2002, republished in Official Journal No. 768 of 8 September 2006 (last 
amendment by Law 115 of 24 April 2013) 

–  Government Ordinance 137/2000 regarding preventing and sanctioning all forms of 

discrimination (Ordonanta Guvernului nr.137/2000 privind prevenirea si sanctionarea 
tuturor formelor de discriminare), republished in Official Journal No. 99 of 8 February 
2007 (last amendment by OUG 19/2013) 

–  Government Emergency Ordinance No. 61/2008 regarding the implementation of the 

principle of equal treatment between women and men in the field of access to and supply 
of goods and services (Ordonanta de Urgenta a Guvernului nr.61/2008 privind 
implementarea principiului egalitatii de tratament intre femei si barbati in ceea ce 
priveste accesul la bunuri si servicii si furnizarea de bunuri si servicii) of 14 May 2008, 
published in Official Journal No. 385 of 21 May 2008 (last amendment by Law 128 of 26 
April 2013) 

–  Government Emergency Ordinance No. 111/2010 regarding leave and monthly 

allowance for parental leave (Ordonanta de Urgenta a Guvernului nr.111/2010 privind 
concediul si indemnizatia lunara pentru cresterea copiilor) of 8 December 2010, 
published in Official Journal No. 830 of 10 December 2010 (last amendment by Law 
166/2012) 

–  Government Emergency Ordinance No. 96/2003 regarding the protection of maternity at 

the workplace (Ordonanta de Urgenta a Guvernului nr.96/2003 privind protectia 
maternitatii la locurile de munca) of 14 October 2003, published in Official Journal No. 
750 of 27 October 2003 (last amendment by OUG 158/2005  

SLOVAKIA 

All of the following Acts are available at www.zbierka.sk, accessed 2 September 2013. 
–  Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and on Protection against 

Discrimination and on Amendment of Certain Acts (Antidiscrimination Act), as amended  

–  Act No. 311/2001 Coll. on the Labour Code (Zákonník práce) 
–  Act No. 5/2004 Coll. on Employment Services (Zákon o službách zamestnanosti) 
–  Act No. 552/2003 Coll. on Works Performed in the Public Interest (Zákon o výkone 

práce voverejnom záujme) 

–  Act No. 4/ 2009 on State Service (Zákon o štátnej službe) 
–  Act No. 461/2003 Coll. on Social Insurance (Zákon o sociálnom poistení) 
–  Act No. 5/2004 Coll. Act on Services of Employment (Zákon o službách v 

zamestnanosti) 

–  Act No. 455/1991 Coll. on Licensed Trades (Small Businesses Act; Živnostenský zákon) 
–  Act No. 8/2008 Coll. Insurance Act (Zákon o poisťovníctve) 
–  Act No. 250/2007 Coll. Consumer Protection Act (Zákon o ochrane spotrebiteľa) 
–  Act No. 650/2004 Coll. on Additional Pension Savings (Zákon o doplnkovom 

dôchodkvom sporení) 

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SLOVENIA 

–  Employment Relationship Act, Official Gazette of the Republic of Slovenia, No. 22/2013 
–  Act Implementing the Principle of Equal Treatment, Official Gazette of the Republic of 

Slovenia, No. 93/2007 

–  Act on Equal Opportunities for Women and Men, Official Gazette of the Republic of 

Slovenia Nos 59/2002 and 61/2007 

–  Act on the System of Salaries in the Public Sector, Official Gazette of the Republic of 

Slovenia, Nos 95/2007, 69/2008 and 107/2009 

–  Pension and Invalidity Insurance Act, Official Gazette of the Republic of Slovenia, Nos 

96/2012 and 39/2013 

–  Act on Volunteering, Official Gazette of the Republic of Slovenia, No. 10/2011 
–  Parental Care and Family Benefits Act, Official Gazette of the Republic of Slovenia, 

No.26/2014.  

–  Health Protection and Insurance Act, Official Gazette of the Republic of Slovenia, Nos 

9/92, 13/93, 9/96, 29/98, 77/98, 6/99, 56/99, 99/2001, 42/2002 and 60/2002 
–  Labour Market Regulation Act, Official Gazette of the Republic of Slovenia, No. 

80/2010 

–  Social Security Act, Official Gazette of the Republic of Slovenia, No. 3/2007 
–  Companies Act, Official Gazette of the Republic of Slovenia, No. 65/2009 
–  Consumers Protection Act, Official Gazette of the Republic of Slovenia, No. 98/2004 
Institutes Act, Official Gazette of the Republic of Slovenia, Nos 12/1991, 17/91, 5/92, 
– 
13/93, 66/93, 45/94, 8/96, 31/00 and 36/00 
Insurance Act, Official Gazette of the Republic of Slovenia, No. 109/2006 

– 
–  Collective Agreements Act, Official Gazette of the Republic of Slovenia, Nos 43/2006 

and 45/2008 

–  Regulation on the Protection of Health in the Workplace of Pregnant Workers and 

Workers Who Have Recently Given Birth or are Breastfeeding, Official Gazette of the 
Republic of Slovenia, No. 82/2003 

–  Regulation on Measures to Protect the Dignity of Employees in Public Administration, 

Official Gazette of the Republic of Slovenia, No. 36/2009 

–  Regulation on Internal Organisation, Post Classification, Posts and Titles within the 
Bodies of the Public Administration and Justice, Official Gazette of the Republic of 
Slovenia, No. 58/2003 

SPAIN 
All webpages accessed 27 May 2014. 
–  Law 3/2007 of 22 March 2007, on Effective Equality Between Women and Men 

http://noticias.juridicas.com/base_datos/Admin/lo3-2007.html 

–  General Law of Social Security (Legislative Royal Decree 1/1994 of 20 June 1994), 

– 

http://noticias.juridicas.com/base_datos/Admin/rdleg1-1994.t2.html#c8 
Law Regulating Social Jurisdiction (Ley reguladora de la jurisdiccion social), Law 
36/2011 of 10 October 2011, http://www.boe.es/buscar/act.php?id=BOE-A-2011-
15936&tn=2&p=20120714 

–  Law of Civil Procedure, Law 1/2000 of 7 January 2000, 

http://noticias.juridicas.com/base_datos/Privado/l1-2000.l1t1.html#a11b 

–  Law of Transgressions and Fines in Labour-Related Areas, Legislative Royal Decree 
1/1995 of 4 August 1995, http://noticias.juridicas.com/base_datos/Laboral/rdleg5-
2000.html#a8 

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

279 

 
 
 
 
 
SWEDEN 

Versions of the indicated Acts (in Swedish) are available (using the number indicated: 
2008:567, etc.) at www.notisum.se. The homepage of the current Discrimination Ombudsman 
includes an English version of the 2008 Discrimination Act on www.do.se. Both websites 
accessed 3 September 2014.  
–  The Discrimination Act (Diskrimineringslagen, 2008:567) 
–  The Parental Leave Act (Föräldraledighetslagen, 1995:584) 
–  The Social Insurance Code (Socialförsäkringsbalken, 2010:110) 

TURKEY 

Legislation available in Turkish at http://www.mevzuat.gov.tr/, accessed 25 August 2013.  
–  Constitution (Anayasa), Law No. 2709, Official Gazette 9 November 1982 
–  Civil Code (Medeni Kanun), Official Gazette 8 December 2001 
–  Law of Obligations (Borçlar Kanunu), Law No. 6098, Official Gazette 4 February 2011 
–  Labour Law (İş Kanunu), Law No. 4857, Official Gazette 10 June 2003 
–  Civil Servants Law (Devlet Memurları Kanunu), Law No. 657, Official Gazette 23 July 

1965 

–  Social Insurances and General Health Insurance Law (Sosyal Sigortalar ve Genel Sağlık 

Sigortası Kanunu), Law No. 5510, Official Gazette 16 June 2006 

–  Criminal Code (Türk Ceza Kanunu), Law No. 5237, Official Gazette 12 October 2004 
–  By–Law on the Working Conditions for Pregnant or Nursing Workers, and Nursing 

Rooms and Day Nurseries, Official Gazette, 16 August 2013 

UNITED KINGDOM 

–  The Equality Act 2010 

280  

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Annex IV 
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Ž. Potočnjak et al. Perspektive antidiskriminacijskog prava (Perspectives of Anti-
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Reactor – Research in Action Women in the Macedonian Economy, 2010. 
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S. Renga La tutela sociale dei lavori Torino, Giappichelli, 2006.  
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W. L. Roozendaal Werk en privé, de strijd om tijd in het arbeidsovereenkomstenrecht (Labour 
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D. Schiek (ed.) Allgemeines Gleichbehandlungsgesetz. Ein Kommentar aus europäischer 

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M. Sepper, Soolise võrdõiguslikkuse ja võrdse kohtlemise voliniku 2011. aasta tegevuse 

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G. De Simone Dai principi alle regole. Eguaglianza e divieti di discriminazione nella 

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P. Smutny & K. Mayr Gleichbehandlungsgesetz Vienna, ÖGB-Verlag 2001.  
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U. Spangenberg and M. Wersig (eds.) Geschlechtergerechtigkeit steuern. 

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K. Walczak ‘Zakaz dyskryminacji w wynagrodzeniu w świetle  prawa i praktyka jego 

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Vienna 2012. 

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of-transition, accessed 31 July 2013.  

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Annex V 
List of national equality bodies 

AUSTRIA 

Ombud for Equal Treatment (Anwaltschaft für Gleichbehandlung) 
Address 
Telephone 
Email 
Website 

Taubstummengasse 11, A-1040 Vienna, Austria 
+43 1 532 02 44 
gaw@bka.gv.at  
www.gleichbehandlungsanwaltschaft.at 

The Ombud for Equal Treatment also has regional offices in Styria, Carinthia, Upper Austria, 
and Tyrol. More information is available at: http://www.chancen-gleichheit.at/NR/rdonlyres/
E502F419-EA00-434C-899C-AB77573834C4/0/BrochureEqualOpportunitiesEqualTreatment
LegislationinAustria.pdf, accessed 11 November 2014. 

BELGIUM 

Institute for the Equality of Women and Men (Institut pour l'égalité des femmes et  
des hommes) 
Address 
Telephone 
Email 
Website 

Rue Ernest Blérot 1, 1070 Brussels, Belgium 
+32 2 233 42 65 
egalite.hommesfemmes@iefh.belgique.be 
http://igvm-iefh.belgium.be/ 

BULGARIA 

The Commission for Protection Against Discrimination 
Address 
Telephone 
Email 
Website 

35 Dragan Tzankov Blvd., Sofia 1125, Bulgaria 
+359 2 807 3030 
kzd@kzd.bg  
www.kzd-nondiscrimination.com 

CROATIA 

Office of the Ombudsman 
Address 
Telephone 
Email 
Website 

Opatička 4, 10000 Zagreb, Croatia 
+385 1 4851855 
ombudsman@ombudsman.hr  
www.ombudsman.hr  

CYPRUS 

The Office of the Commissioner for Administration (Ombudsman) 
Address 
Telephone 
Email 
Website 

ERA House, 2 Diagorou Street, 1097 Nicosia, Cyprus 
+357 22 405 500 
ombudsman@ombudsman.gov.uk  
www.no-discrimination.gov.uk  

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The Gender Equality Committee in Employment and Vocational Training 
Address 
Telephone 
Email 
Website 

Clementos 9, 1061 (Office 312) Nicosia, Cyprus 
+357 22 400 846 
genderegualitycommittee@mlsi.gov.cy 
http://www.eif.gov.cy  

Commissioner for Gender Equality 
Address 
Telephone 
Email 
Website 

125 Athalassas Avenue, 1461 Strovolos, Nicosia, Cyprus 
+357 22 805 929 
iantoniou@presidency.gov.cy 
www.mjpo.gov.cy 

CZECH REPUBLIC 

The Office of the Public Defender of Rights 
Address 
Telephone 
Email 
Website 

Udolni 39, 602 00 Brno, Czech Republic 
+420 542 542 888 
podatelna@ochrance.cz 
www.ochrance.cz 

DENMARK 

The Danish Institute for Human Rights 
Address 
Telephone 
Email 
Website 

Strandgade 56, Postboks 9080, DK-1401 Copenhagen K, Denmark 
+45 32 69 88 88 
center@humanrights.dk  
www.humanrights.dk  

ESTONIA 

The Gender Equality and Equal Treatment Commissioner 
Address 
Telephone 
Email 
Website 

Gonsiori 29, 15027 Tallinn, Estonia 
+372 626 9259 
info@svv.ee  
www.svv.ee  

The Chancellor of Justice 
Address 
Telephone 
Email 
Website 

Kohtu 8, 15193 Tallinn, Estonia 
+372 693 8404  
info@oiguskantsler.ee 
http://oiguskantsler.ee/en 

FINLAND 

The Ombudsman for Equality 
Address 
Telephone 
Email 
Website 

PO Box 33 (Meritullikatu 1), FIN-00023 GOVERNMENT, Finland 
+358 9 1607 3248 
tasa-arvo@stm.fi  
www.tasa-arvo.fi  

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289 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
FRANCE 

The Defender of Rights (formally HALDE) 
Address 
Telephone 
Email 
Website 

Rue Saint Florentin 7, 75008 Paris, France 
+33 (0) 1 53 292 200 
communication@defenseurdesdroits.fr 
www.defenseurdesdroits.fr 

GERMANY 

The Federal Anti-Discrimination Agency (FADA) 
Address 
Telephone 
Email 
Website 

Glinkastraße 24, 10117 Berlin, Germany 
+49 (0) 3018 555 1865 
poststelle@ads.bund.de or beratung@ads.bund.de 
www.antidiskriminierungsstelle.de or 
www.federal-anti-discrimination-agency.com 

GREECE 

Hatziyianni Mexi 5, 115 28 Athens, Greece 
+30 210 72 89 600 
Greek_Ombudsman@synigoros.gr 
www.synigoros.gr 

The Greek Ombudsman (public sector) 
Address 
Telephone 
Email 
Website 
The Consumers’ Ombudsman (private sector) 
Address  
Telephone 
Email 
Website 

+30 210 6460 862/814/612/734/458 
grammateia@synigoroskatanaloti.gr 
http://www.synigoroskatanaloti.gr  

HUNGARY 

Margit krt.85, 1024 Budapest, Hungary 
+36 1 336 7843 
ebh@ebh.gov.hu  
www.egyenlobanasmod.hu 

The Hungarian Equal Treatment Authority 
Address 
Telephone 
Email 
Website 
The Commissioner for Fundamental Rights 
Address 
Telephone 
Email 
Website  

Nádor street 22, 1051 Budapest, Hungary 
+36 1 475 7100 
panasz@ajbh.hu or hungarian.ombudsman@ajbh.hu 
www.ajbh.hu  

ICELAND 

The Centre for Gender Equality (Jafnréttisstofa) 
Address 
Telephone 
Email 
Website 

Jafnréttisstofa, Borgum vid Nordurslód, 600 Akureyri 
+354 460 6200 
jafnretti@jafnretti.is  
www.jafnretti.is 

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The Icelandic Human Rights Centre 
Address 
Telephone 
Email 
Website 

Icelandic Human Rights Center, Túngata 14, 101 Reykjavík 
+ 354 552 27 20 
info@humanrights.is  
http://www.humanrights.is/english/  

IRELAND 

The Equality Authority 
Address 
Telephone 
Email 
Website 

2 Clonmel Street, Dublin 2, Ireland 
+353 1 417 3363 
info@equality.ie  
www.equality.ie  

ITALY 

The National Equality Adviser (La Consigliera Nazionale di Parità) 
Address  

Ministero del Lavoro e delle Politiche Sociali via Flavia, 6 - 00187 
Roma 
+39 (0) 6 4683 4031 
consiglieranazionaleparita@lavoro.gov.it  
http://www.lavoro.gov.it/ConsiglieraNazionale/  

Telephone 
Email 
Website 

LATVIA 

The Office of Ombudsman of the Republic of Latvia 
Address 
Telephone 
Email 
Website 

Baznican Street 25, LV-1010 Riga, Latvia 
+371 676 867 68 
tiesibsargs@tiesibsargs.lv 
http://www.tiesibsargs.lv/eng/ 

LIECHTENSTEIN 

The Gender Equality Office of Liechtenstein  
Address 

 Stabsstelle für Chancengleichheit (SCG), Städtle 38, Postfach 684, 
 9490 Vaduz 
+423 236 60 60  
info@scg.llv.li  
www.llv.li/amtsstellen/llv-scg-home.htm  

Telephone 
Email 
Website 

LITHUANIA 

Office of the Equal Opportunities Ombudsperson 
Address 
Telephone 
Email 
Website 

Šeimyniškių 1A, Vilnius 09312, Lithuania 
+370 5 261 27 28 
mvlgk@lrs.lt 
www.lygybe.lt 

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LUXEMBOURG 

The Centre for Equal Treatment (CET) 
Address 
Telephone 
Email 
Website 

26 Place de la Gare, L-1616 Luxemburg 
+352 26 48 30 33 
info@cet.lu  
www.cet.lu  

FYR MACEDONIA 

The Ombudsman of the Republic of Macedonia 
Address 
Telephone 
Email 
Website 

Dimitrie Cuposki st. No.2 (building of GP ‘Pelagonija’) 
+389 (0)2 3129 335 
contact@ombudsman.mk 
www.ombudsman.mk/  

The Commission for Protection against Discrimination 
Address 

Kej Dimitar Vlahov 66, (building of the MRTV), 20th floor, Skopje, 
Bulgaria 
+389 (0)2 3232 242 
contact@kzd.mk 
www.kzd.mk 

Telephone 
Email 
Website 

MALTA 

The National Commission for the Promotion of Equality 
Address 
Telephone 
Email 
Website 

Gattard House, National Road, Blata I-Bajda HMR 9010, Malta 
+356 2590 3850 
equality@gov.mt  
www.equality.gov.mt  

NETHERLANDS 

The Netherlands Institute for Human Rights 
Address 
Telephone 
Email 
Website 

Kleinesingel 1-3, 3572 CG Utrecht, the Netherlands 
+31 (0) 30 888 38 88 
info@mensenrechten.nl  
www.mensenrechten.nl  

Art.1 
Address 
Telephone 
Website 

NORWAY 

Grotekerkplein 5, 3011 GC Rotterdam, the Netherlands 
+31 (0) 10 201 02 01 
www.art1.nl (email contact is possible via this webpage)  

The Equality and Anti-Discrimination Ombud (LDO) 
Address 
Telephone 
Email 
Website 

PO Box 8048, Dep, N-0031 Oslo, Norway 
+47 23 15 73 00 
post@LDO.no  
www.ldo.no  

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POLAND 

The Human Rights Defender   
Address 
Telephone 
Email 
Website 

Al. Solidarności 77, 00-090 Warsaw, Poland 
+48 800 676 676 
biurorzecznika@brpo.gov.pl 
www.rpo.gov.pl 

PORTUGAL 

Av. da República, 32 - 1º, 1050-193 Lisbon, Portugal 
+351 800 202 148 
cig@cig.gov.pt  
www.cig.gov.pt  

The Commission for Citizenship and Gender Equality (CIG)  
Address 
Telephone 
Email 
Website 
The Commission for Equality in Labour and Employment (CITE) 
Address 
Telephone 
Email 
Website 

Rua Viriato, nº 7 – 1º, 2º e 3º andares, 1050-233 Lisbon, Portugal 
+351 217 803 700 
gera@cite.gov.pt 
www.cite.gov.pt  

ROMANIA 

The National Council for Combating Discrimination (NCCD) 
Address 

1-3 Valter Maracineanu Square, District/Sector 1, Bucharest,  
Romania 
+40 21 312 65 78 
support@cncd.org.ro  
www.cncd.org.ro  

Telephone 
Email 
Website 

SLOVAKIA 

The Slovak National Centre for Human Rights (SNSLP) 
Address 
Telephone 
Email 
Website 

Laurinská 18, 811 01 Bratislava, Slovakia 
+421 2 208 501 14/ 15 
info@snslp.sk  
www.snslp.sk  

SLOVENIA 

The Advocate of the Principle of Equality within the Ministry of Labour, Family and 
Social Affairs 
Address 
Telephone 
Email 
Website 

Kotnikova 28, 1000 Ljubljana, Slovenia 
+386 (0) 1 369 7503 
zagovornik.uem@gov.si 
www.zagovornik.net 

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293 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
SPAIN 

The Institute of Women 
Address 
Telephone 
Email 
Website 

C/ Condesa de Venadito, No. 34, 28027 Madrid 
+34 900 191 010 
via the website at www.inmujer.gob.es/en/elInstituto/contacto.do  
www.inmujer.gob.es/home.htm  

SWEDEN 

The Equality Ombudsman 
Address 
Telephone 
Email 
Website 

Box 3686, 103 59 Stockholm, Sweden 
+46 8 120 20 700 
do@do.se  
www.do.se  

TURKEY 

The Ombudsman 
Address 

Telephone 
Email 
Website 

UNITED KINGDOM 

Remzi Oğuz Arık Mh. Ali Dede Sokak. No: 8 06540 Çankaya /  
Ankara 
+90 312 465 22 00 
iletisim@ombudsman.gov.tr  
http://www.kamudenetciligi.gov.tr/  

The Equality and Human Rights Commission (ECHR) 
Address 
Telephone 
Email 
Website  

Fleetbank House, 2-6 Salisbury Square, London EC4Y 8JX, UK 
+44 20 7832 7800 
correspondence@equalityhumanrights.com   
www.equalityhumanrights.com  

The Equality Commission for Northern Ireland (ECNI) 
Address 
Telephone  
Email 
Website 

Equality House, 8-9 Shaftesbury Square, Belfast, BT2 7DP, UK 
+44 28 90 890 890 
information@equalityni.org  
www.equalityni.org  

294  

Gender Equality Law in 33 European Countries: How are EU rules transposed into national law? 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
HOW TO OBTAIN EU PUBLICATIONS 

Free publications: 

•  one copy: 

via EU Bookshop (http://bookshop.europa.eu); 

•  more than one copy or posters/maps: 

from the European Union’s representations (http://ec.europa.eu/represent_en.htm);  
from the delegations in non-EU countries 
(http://eeas.europa.eu/delegations/index_en.htm);  
by contacting the Europe Direct service (http://europa.eu/europedirect/index_en.htm) 
or calling 00 800 6 7 8 9 10 11 (freephone number from anywhere in the EU) (*). 

(*)  The information given is free, as are most calls (though some operators, phone boxes or hotels may 
charge you). 

Priced publications: 

•  via EU Bookshop (http://bookshop.europa.eu). 

 
 
 
 
 
 
 
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