COMMISSION STAFF WORKING DOCUMENT EVALUATION of the relevant provisions in the Directive 2006/54/EC implementing the Treaty principle on ‘equal pay for equal work or work of equal value’
Date: 2020-03-05
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU employment policy, equal pay, equal treatment, gender equality, labour market, position of women, remuneration of work, sexual discrimination, women's rights, working conditions

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 5.3.2020  SWD(2020) 50 final  COMMISSION STAFF WORKING DOCUMENT  EVALUATION of the relevant provisions in the Directive 2006/54/EC implementing the Treaty principle on ‘equal pay for equal work or work of equal value’       {SWD(2020) 51 final}  
 
 
1. 

INTRODUCTION 

Purpose and scope of the evaluation 

2.  BACKGROUND TO THE INITIATIVE 

2.1. 

Description of the initiative 

2.2. 

Baseline 

3.  PROCESS, METHODOLOGY AND LIMITATIONS 

4. 

IMPLEMENTATION AND STATE OF PLAY 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

5.1. 

Effectiveness 

5.1.1. Implementation of the concepts of ‘equal pay’, ‘same work’ and ‘work of equal value’ in national 
legislation and practice 
5.1.2. Effectiveness of EU action in terms of for access to justice 
5.1.3. Effectiveness of actions in terms of monitoring and enforcement 
5.1.4. Effectiveness of actions to tackle occupational segregation 
5.1.5. Effectiveness of the Recommendation 
5.1.6. Effectiveness in terms of the results and impacts achieved 

5.2. 

Efficiency 

5.3. Relevance 

5.3.1 Relevance to original needs 
5.3.2. Relevance to current needs 

5.4. Coherence 

5.4.1 Internal coherence 
5.4.2. Coherence with other EU interventions related to the objective of reducing gender discrimination and 
contributing to gender equality 
5.4.3 External coherence with wider EU policies 
5.4.4. External coherence with international obligations and standards 

5.5. EU Added Value 

6.  CONCLUSIONS 

ANNEXES 

Annex 1 - Procedural information concerning the process to prepare the evaluation 

Annex 2 - Synthesis of stakeholders consultation activities 

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30 
32 
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Annex 3 – Methodological issues on the gender pay gap indicator and its decomposition using the Structure 
84 
of Earnings Survey microdata 

Annex 4 - Intervention logic 

Annex 6 – Provisions within the scope of the evaluation 

Annex 7 – Relevant CJEU case-law 

Annex 8 – Concept and measurement of gender pay discrimination 

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95 

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ACRONYMS AND ABBREVIATIONS 

CEDAW 

CJEU 

DG JUST 

EIGE 

EMCO 

Convention on the Elimination of all forms of Discrimination Against Women 

Court of Justice of the European Union 

Directorate-General for Justice and Consumers 

European Institute for Gender Equality 

Employment Committee 

EQUINET 

European Network of Equality Bodies 

ETUC 

EU 

European Trade Union Confederation 

European Union 

EU Charter  

Charter of Fundamental Rights of the European Union  

GDP 

GDPR 

GPG 

ICCPR 

Gross Domestic Product 

General Data Protection Regulation 

Gender Pay Gap 

International Covenant on Civil and Political Rights 

ICESCR 

International Covenant on Economic, Social and Cultural Rights 

ILO 

NGOs 

OECD 

PC 

RSB 

SDG 

SMEs 

TEU 

TFEU  

International Labour Organisation 

Non-governmental organisations 

Organisation for Economic Cooperation and Development 

Public consultation conducted by DG JUST 

Regulatory Scrutiny Board 

Sustainable Development Goal 

Small and medium-sized enterprises 

Treaty on European Union 

Treaty on the Functioning of the European Union 

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1.  INTRODUCTION 

Purpose and scope of the evaluation  

Equal  pay  for  equal  work  or  work  of  equal  value  is  one  of  the  European  Union’s  founding 
principles1.  The  principle  of  equal  pay  between  women  and  men  has  been  enshrined  in  the 
Treaties  since  1957  (Article 157(1-2)).  Article 4  of  Directive  2006/54/EC  implements  the 
principle of equal pay by providing that, for the same work or for work of equal value, direct 
and indirect discrimination on the grounds of sex is prohibited in all aspects and conditions of 
remuneration. This principle, above all, reflects a human rights issue that recognises that male 
and female workers have equal individual dignity, but it is also an economic issue that benefits 
overall  potential  for  production  through  more  effective  use  of  skills.  However,  the  effective 
implementation and enforcement of this principle remains a big challenge2, partially reflected in 
the persistence and magnitude of the gender pay gap3 (GPG) of 15.7% for the EU28 in 2018. 

One of the five main priorities of the 2016-2019 strategic engagement for gender equality4 is to 
reduce  pay,  earnings  and  pension  gaps  between  women  and  men,  thereby  addressing  higher 
risk of poverty among women5. The gender pay gap in unadjusted form is also one of the three 
indicators  for  gender  equality  included  in  the  social  scoreboard6  that  the Commission  uses  to 
monitor the implementation of the European Pillar of Social Rights7. Gender equality has also 
been a prominent topic within the European Semester8 with the gender pay gap addressed in the 
Country  Specific  Recommendations  for  a  number  of  countries  as  recitals  and  as  specific 
recommendation in Estonia.  

This staff working document (SWD) provides the results of the REFIT9 evaluation of relevant 
provisions (see Annex 6) in EU law implementing the Treaty principle on ‘equal pay for equal 
work  or  work  of  equal  value’  (TFEU  Article 157  (1-2)).  These  are  Directive  2006/54/EC10, 
complemented by the Pay Transparency Recommendation11. In the remainder of this document, 
Directive  2006/54/EC  is  referred  to  as  ‘the  Directive’  while  the  Pay  Transparency 
Recommendation is referred to as ‘the Recommendation’. The two elements are jointly referred 
to as ‘the EU action’.  

1  The  principle  of  equal  pay  between  women  and  men  has  been  enshrined  in  the  Treaties  since  1957  (Article 157(1-2)).  Article 4  of  the 
Directive 2006/54/EC implements the principle of equal pay by providing that, for the same work or for work of equal value, direct and indirect 
discrimination on grounds of sex is prohibited in all aspects and conditions of remuneration. 
2 Foubert P., The enforcement of the principle of equal pay for equal work or work of equal value. A legal analysis of the situation in the EU  
Member States, Iceland, Liechtenstein and Norway, ELLN for the European Commission, 2017. 
 Available at: https://op.europa.eu/en/publication-detail/-/publication/834d34ab-2d87-11e8-b5fe-01aa75ed71a1  
3 The gender pay gap is the difference between average gross hourly earnings of male and female paid employees, expressed as a percentage of 
the former. Source: Eurostat [sdg_05_20], See also http://ec.europa.eu/eurostat/statistics-explained/index.php/Gender _pay_gap_statistics. 
4 https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/gender-equality-strategy_en. 
5 18% of women over 65 had an income below the relative poverty threshold in 2018 compared to 13.4% of men [Eurostat, ilc_li02]. 
6 See https://composite-indicators.jrc.ec.europa.eu/social-scoreboard/ 
7  Proclaimed  by 
https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights_en 
8  The  European  semester  is  the  framework  for  the  coordination  of  economic  policies  across  the  EU.  See  https://ec.europa.eu/info/business-
economy-euro/economic-and-fiscal-policy-coordination/eu-economic-governance-monitoring-prevention-correction/european-semester_en 
9 The Regulatory Fitness and Performance Programme, or REFIT, is the Commission’s programme for ensuring that EU legislation remains fit 
for purpose and delivers the results intended by EU lawmakers. 
10  Directive  2006/54/EC  of  the  European  Parliament  and  of  the  Council  of  5 July  2006  on  the  implementation  of  the  principle  of  equal 
opportunities and equal treatment of men and women in matters of employment and occupation (recast), OJ L 204, 26.7.2006. Available at: 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0054 
11 Commission Recommendation of 7 March 2014 on strengthening the principle of equal pay between men and women through transparency. 
OJ L 69/112, 8.3.2014. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32014H0124 

the  Commission  on  17 November  2017  Available  at: 

the  European  Parliament, 

the  Council  and 

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The evaluation’s scope is limited to analysing the relevant provisions of Directive 2006/54/EC 
with  a  view  to  improving  implementation  of  the  equal  pay  principle,  its  enforcement  and 
protection  of  victims  of  discrimination,  taking  into  account  other  existing  legal  provisions 
(Art. 157 TFEU, having a direct horizontal effect) and the non-binding 2014 Pay Transparency 
Recommendation  and  their  impact.  This  scope  allows  the  evaluation  to  focus  on  the 
implementation  of the legal  provisions related to  protecting the victims of pay discrimination 
and the related pay transparency measures. Given the lack of robust quantitative indicators of 
pay  discrimination,  this  evaluation  looks  at  the  changes  to  the  gender  pay  gap,  as  a  broad 
context indicator on pay differences and relies on qualitative sources to illustrate the impact of 
the relevant legislative measures. 

The  Commission’s  action  plan  for  2017-201912  provides  that  the  Commission  will  assess  the 
opportunity for targeted amendments to the Directive with the aim, in particular, of improving 
pay  transparency.  Gender-focused  commentary  and  the  discourse  on  gender  rights  following 
the  #MeToo  movement  have  indirectly  fuelled  demands  for  better  pay  transparency.  Several 
countries,  such  as  Germany,  France,  Portugal  and  Ireland,  have  recently  introduced  new 
measures on pay transparency. Gender equality issues became more prominent internationally 
and the attention given to women’s rights in the public sphere clearly increased policy action to 
tackle gender equality issues. 

A  2013  report  on  implementing  the  Directive13  and  a  2017  report  on  implementing  the 
Recommendation14  highlight  persistent  problems  with  the  practical  enforcement  and  legal 
interpretation  of  the  principle  of  equal  pay  for  equal  work  or  work  of  equal  value.  These 
problems  are  confirmed  by  cases  brought  before  the  Court  of  Justice  of  the  European  Union 
(CJEU)15 and by cases reported by the equality bodies16 responsible for enforcing the Directive. 

In  line  with  the  Better  Regulation  Guidelines17,  this  evaluation  assesses  the  effectiveness, 
efficiency,  relevance,  coherence  and  EU  added  value  of  the  EU’s  legal  provisions  on  equal 
pay18. In particular, this evaluation analyses:  

 
 
 

the relevant provisions of the Treaty (Article 157 (1-2)), which has direct effect19;  
the Directive and its enforcement;  
the relevant provisions of the Recommendation and its follow-up in Member States.  

The evaluation also assesses:  

 
 
 

the ways in which the existing legal provisions on equal pay have worked in practice;  
the approaches implemented in the Member States;  
the extent to which their initial goals have been reached;  

12  Commission’s  Action  Plan  2017-2019:  tackling  the  gender  pay  gap,  adopted  on  20 November  2017,  available  at:    https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=CELEX% 3A52017DC0678 
13  Report  from  the  Commission  to  the  European  Parliament  and  the  Council  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  final.  Available  at:  https://eur-lex.europa.eu/legal-
content/en/ALL/?uri=CELEX:52013DC0861. 
14  Report  from  the  Commission  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social  Committee  on  the 
implementation of Commission Recommendation on strengthening the principle of equal pay between men and women through transparency 
— COM(2017) 671 final. Available at: https://ec.europa.eu/transparency/regdoc/rep/1/2017/EN/COM-2017-671-F1-EN-MAIN-PART-1.PDF 
15  European  Commission,  Overview  of  landmark  case  law  of  the  Court  of  Justice  of  the  European  Union,  2019,  Available  at: 
https://op.europa.eu/en/publication-detail/-/publication/8ecbe429-fb90-11e9-8c1f-01aa75ed71a1 
16  S.Burry,  National  cases  and  good  practices  on  equal  pay,  ELLN  for 
https://ec.europa.eu/info/sites/info/files/ equalpaygoodpractices.pdf , p. 34 
17 European Commission, Better Regulation: Guidelines and Toolbox. https://ec.europa.eu/info/better-regulation-guidelines-and-toolbox_en. 
18 https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-3415794_en 
19 Case 43-75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (Defrenne II), ECR 1976/455, 8 April 1976, para. 
8-10. 

the  European  Commission,  2017,  Available  at:  

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  how effectively they have been enforced; and  
 

their overall impact against the overall trend of the gender pay gap. 

The evaluation examines different aspects of the impact of the EU action on national legislation 
and its consequences for different stakeholders (e.g. equality bodies, employers, social partners, 
female and male employees and victims of sex-based pay discrimination). The evaluation also 
assesses any potential unnecessary or disproportionate burden or complexity. 

The evaluation covers the period from the adoption of the Directive in 2006 to December 2017, 
with  some  references  to  the  more  recent  years  when  relevant  and  possible.  It  focuses  in 
particular  on  how  the  Directive  has  been  applied  and  enforced  since  2014,  when  the 
Recommendation was adopted. This SWD also tries to take account of developments that have 
taken place in Member States between the end of the evaluation period (December 2017) and 
the time at which the support study was prepared (May 2019). The geographic focus was the 28 
EU Member States20.   

2.  BACKGROUND TO THE INITIATIVE 

2.1.  Description of the initiative 

The  Directive  merged  four  directives21  on  equal  opportunities  and  equal  treatment  of  women 
and  men,  taking  into  account  case-law  from  the  CJEU22,  into  a  single  more  readable  and 
accessible  piece  of  legislation  that  consolidated,  updated  and  modernised  EU  legislation  on 
gender  equality  in  matters  of  employment  and  occupation23.  The  provisions  of  the  Directive 
(see  Annex  6)  being  evaluated  were  designed  to  make  the  implementation  of  the  equal  pay 
principle more effective, through preventing and combatting pay discrimination on the basis of 
sex.  

To this end, the Directive pursues the following specific objectives: 

 

  establish  legal  clarity  on  the  existing  provisions  applying  the  principle  of  equal 
opportunities and equal treatment, including the principle of equal pay for equal work or 
work  of  equal  value,  in  particular  by  clarifying  the  concepts  of  ‘pay’  (art.  2(1)(a), 
‘equal/same work’24(art. 2(1)(a), and ‘work of equal value’ (recital 9); 
facilitate  respect  for EU rights  on  equal  pay by  putting in  place  adequate judicial  and 
administrative procedures to enforce the obligations set out in the Directive; 
increase legal protection for a complainant by ensuring that the burden of proof shifts to 
the respondent where there appears to be a case of discrimination (a  prima facie case) 
by extending the rules on the burden of proof to the area of occupational social security 
schemes. 

 

The  Directive  set  out  actions  to  achieve  these  objectives:  social  partners  were  encouraged  to 
take part in negotiations on equal pay and to promote gender-neutral systems for evaluating and 

20  In 2006, 25 Member States were subject to the Directive. Bulgaria and Romania joined the EU in 2007 and Croatia in mid-2013. All 28 
Member States were subject to the Recommendation.  
21  Directive75/117/EEC  on  equal  pay;  Directive  86/378/EEC,  as amended by  Directive  96/97/EC,  on  equal  treatment  in  occupational  social 
security schemes; Directive 76/207/EEC, as amended by Directive 2002/73/EC, on equal treatment of men and women; Directive 97/80/EC, as 
amended by Directive 98/52/EC, on the burden of proof in cases of discrimination based on sex. 
22 An overview of landmark case-law on equal pay is provided in Annex 7. 
23 Proposal for a Directive of the European Parliament and of the Council on the implementation of the principle of equal opportunities and 
equal treatment of men and women in matters of employment and occupation (recast version), COM(2004) 279 of 21.4.2004. 
24 The Treaty uses the term ‘equal work’, while the Directive - ‘same work’. 

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classifying  jobs;  courts  were  expected  to  implement  the  shift  of  the  burden  of  proof  to 
respondent; and Member States were required to introduce real and effective compensation or 
reparation and dissuasive sanctions, and  ensure  monitoring and enforcement of the equal  pay 
principle.  

Following the report on the implementation of the Directive in 2013 and given the incomplete 
application  of  the  principle  of  equal  pay  for  equal  work  and  work  of  equal  value  and  related 
implementation  challenges,  a  Recommendation25  was  made  to  complement  the  Directive, 
covering  the  need  for  greater  pay  transparency.  Member  States  were  encouraged  to  adopt  at 
least one of four core measures set out in the Recommendation and employers were expected to 
comply  by  responding  to  employee  requests  for  pay  information  and/or  by  carrying  out  pay 
reports or audits. The Recommendation sought to encourage companies to analyse and review 
their  pay  structures  and  to  improve  social  partners’  involvement  in  fighting  conscious  and 
unconscious gender bias in setting pay as part of the collective bargaining process. 

The four main26 measures promoted in the Recommendation are: 

  Right to information on pay levels: this right allows employees to request information 
on pay levels (including elements beyond fixed basic salary, such as bonuses), broken 
down  by  gender,  for  categories  of  employees  doing  the  same  work  or  work  of  equal 
value. 

  Pay  reporting:  employers  with  at  least  50  employees  should  regularly  report  to 
employees, workers’ representatives and social partners on the average remuneration by 
category  of  employee  or  position,  broken  down  by  gender.  This  measure  is  aimed  at 
smaller companies and requires simple reporting of information that is usually already 
collected by the companies’ human resources systems.  

  Pay audit:  this transparency measure  includes  an analysis of the proportion  of women 
and men in each category of employee or position, an analysis of the job evaluation and 
classification  system  used,  and  detailed  information  on  pay  and  pay  differentials  on 
grounds  of  gender.  The  Recommendation  suggests  applying  these  measures  only  to 
companies  with  at  least  250  employees,  as  audits  may  involve  additional  costs.  The 
results  of  the  audit  should  be  made  available  to  workers’  representatives  and  social 
partners on request.  

  Collective  bargaining  on  equal  pay:  equal  pay,  including  pay  audits,  should  be 

discussed at the appropriate level of collective bargaining. 

The  intervention  logic  of  the  EU  action  -  a  diagram  summarising  how  the  EU  action  was 
(originally)  expected  to  work  (i.e.  at  the  time  of  adoption  /  implementation),  including 
identifying  the  underlying  assumptions  depicted  in  Annex  4.  The  objective  of  the  EU  action 

25 Recitals 8 and 10 of Recommendation 2014/124/EU of 7 March 2014 on strengthening the principle of equal pay between men and women 
through  transparency,  OJ  L  69,  8.3.2014  and  Report  from  the  Commission  to  the  European  Parliament  and  the  Council  Report  on  the 
application of Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men  and women in 
matters of employment and occupation, COM/2013/861 final. 
26  The  Recommendation  also  invites  Member  States  to  provide  the  Commission  (Eurostat)  each  year  with  statistics  on  the  gender  pay  gap 
broken down by gender, economic sector, working time (full-time/part-time), economic control (public/private ownership) and age, and data on 
the number and types of pay discrimination cases. The Recommendation invites Member States to clarify the concept of ‘work of equal value’, 
following the guidelines established by the European Court of Justice; to promote the development and use of gender-neutral job evaluation 
and  classification  systems,  and  to  ensure  that  the  implementation  of  the  equal  pay  principle  is  consistently  monitored  and  that  all  available 
remedies to combat pay discrimination are enforced. Finally, the Recommendation includes suggestions on the role of equality  bodies. These 
already had the competence to act on matters of equal pay, including pay discrimination, on the basis of the Directive. The Recommendation 
aimed at strengthening their action by inviting Member States to ensure that equality bodies can handle questions and claims relating to pay 
transparency. More specifically, equality bodies should have access to pay reports prepared by employers and pay audits and they should be 
able  to  represent  victims  in  pay  discrimination  cases.  Finally,  importantly,  equality  bodies’  action  should  be  strengthened  by  establishing  a 
close cooperation and coordination with national bodies that have an inspection function in the labour market (labour inspectorates). 

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was  to  promote  the  EU principle  of  and  fundamental  right  to  equal  pay  between  women  and 
men by allowing easier access to justice for victims of gender-based pay discrimination and the 
better  enforcement  of  the  principle  of  equal  pay,  including  by  promoting  pay  transparency 
measures.  The  operational  measures  available  to  Member  States  to  implement  the  EU  action 
should  have  allowed  to  improve  pay  transparency  and  should  have  created  a  supportive 
mechanism  for  victims  of  pay  discrimination.  As  a  result,  greater  awareness  on  the  right  of 
equal pay, remedies for gender pay discrimination and knowledge on the pay structure applied 
at  the  workplace,  job  satisfaction  as  well  as  better  application  of  the  equal  pay  provisions  in 
national courts should have materialised.   

2.2.  Baseline  

Prior  to  2006,  the  EU  adopted  a  number  of  legal  instruments  to  address  equal  pay  between 
women and men, as part of its broader work on gender equality and the CJEU consolidated its 
interpretation of EU rules with key case-law (see Annex 7). EU Member States were bound by 
gender  equality  obligations  under  the  Treaty  and  a  number  of  directives  implementing  the 
principle  of  equal  treatment  for  men  and  women.  Beginning  with  the  Equal  Pay  Directive  of 
197527, the EU has adopted nine directives implementing the principle of equality between men 
and  women  in  the  areas  of  employment,  work  and  social  security.  They  contained  equality 
guarantees  (for  example  equal  treatment  in  access  to  employment  or  equal  pay)  and  special 
rights (for example pregnancy protection, maternity leave or parental leave). In addition to the 
Equal Pay Directive, the Equal Treatment Directive28 and the Burden of Proof Directive29 were 
of  particular  relevance  to  the  institution  of  equal  pay.  International  obligations  and  standards 
also apply to Member States30.  

The  key  EU  political  strategy  in  place  when  the  Directive  was  adopted  was  the  ‘Lisbon 
strategy’31.  In  the  European  employment  strategy  (EES),  gender  equality  issues  featured 
prominently as one of the main tools to achieve high employment levels in the EU32, reflecting 
the  parallel  development  of  the  Beijing  Platform  for  Action  in  the  context  of  the  1995  UN 
Summit on Women. Following the mid-term review of the EES in December 2001, the gender 
pay  gap  was  recognised  as  a  key  indicator  for  measuring  progress  towards  gender  equality33. 
This  is  calculates  as  the  difference  between  average  gross  hourly  earnings  of  male  paid 
employees and of female paid employees as a percentage of average gross34 hourly earnings of 
male paid employees35. This means that salaries in all sectors, occupations and career patterns 
are considered together. It summarises all differences between men and women in terms of pay 
and is therefore a handy tool for communication and policy-making. Nevertheless, interpreting 
the gender pay gap is not entirely straightforward (See Annex 3). In particular, it is important to 
stress that it includes issues other than direct gender pay discrimination, i.e. women being paid 
less for the same work because they are women. It  also includes the influence of all possible 

27 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 045, 19/02/1975 P. 0019 – 0020. 
28 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 039, 14/02/1976 P. 0040 – 0042. 
29 Council Directive 98/52/EC of 13 July 1998 on the extension of Directive 97/80/EC on the burden of proof in cases of discrimination based 
on sex to the United Kingdom of Great Britain and Northern Ireland, OJ L 205, 22.7.1998, p. 66-66. 
30  The  International  Covenant  on  Civil  and  Political  Rights  (ICCPR),  the  International  Covenant  on  Economic,  Social  and  Cultural  Rights 
(ICESCR) and the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and its Optional Protocol (See 
Section 5.4. for details). 
31 See https://ec.europa.eu/archives/growthandjobs_2009/ 
32 See for instance Beveridge, F., & Velluti, S., Gender and the open method of coordination, Dartmouth: Ashgate, 2008. 
33 Employment and social policy, 2392nd Council meeting, Brussels, 3 December 2001, doc. 14762/01 (Presse451-G) 2001. 
34 The indicator therefore does not capture differences in net earnings that may result from provisions such as joint taxation. 
35 A decrease of average gross earnings for males therefore also reduces the gender pay gap. The impact of this on poverty rates is obviously 
different than an increase in female average gross wages would be. 

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gender imbalances on the labour market, namely labour segregation, constraints relating to care 
related  career  breaks  and  differences  in  working  hours  (part-time  vs.  full-time)  and 
unobservable variables such as negotiating skills and personal preferences. These factors can be 
gender biased but are not necessarily related solely to gender pay discrimination. 

According  to  the  intervention  logic  in  Annex  4,  the  expectation  of  pay  discrimination  and 
undervaluation of work influences the extent to which women are active on the labour market.  
The presented indicators match only some elements of the intervention logic and are limited by 
data availability. For example, quantitative data across the EU could not be gathered for career 
progression,  reputational  impacts  on  employers  and  occurrence  of  gender-based  pay 
discrimination.  Impact  indicators  include  gender  pay  gap,  representation  on  company  boards, 
labour  force  participation  and  elderly  poverty.  Outcome  indicators  include  job  satisfaction. 
Additional relevant indicators (e.g. employment rate and part-time work) are also included in 
the  baseline.  To  give  an  overview  of  the  baseline  scenario,  Table  1  sets  out  a  selection  of 
indicators broadly related to equal pay between men and women for the years 2006 (year of the 
adoption of the Directive) and 2014 (year of adoption of the Recommendation).  

Table 1. Baseline indicators — 2006 and 2014 

Gender pay gapa 
Median hourly earningsb 

Elderly poverty  

Labour force participationb 

Employment rateb 

Part-time work as a share of 
total employment b 
Representation of women on 
company boardse 
Job satisfactionf 

Directive 
2006 
(EU-25) 
18.0% 
10.5 (F) 
12.4 (M) 
20.2% (F) 
15.3% (M) 
64.0% (F) 
78.4% (M) 
58.3% (F) 
72.5% (M) 
26.5% (F) 
6.2% (M) 
8.9% 

Recommendation 

Source 

2006 
(EU-28) 
17.6% 
10.6 (F)c 
12.3 (M)c 
19.2%c (F) 
14.5%c (M) 
62.7% (F) 
77.4% (M) 
57.0% (F) 
71.4% (M) 
29.8% (F) 
6.2% (M) 
9.1% 

2014 
(EU-25) 
17.1% 
11.9 (F) 
13.9 (M) 
15.0% (F) 
10.8% (M) 
67.9% (F) 
78.8% (M) 
61.3% (F) 
71.2% (M) 
32.1% (F) 
8.7% (M) 
21.3% 

2014 
(EU-28) 
16.7% 
12.2 (F) 
14.1 (M) 
15.7% (F) 
11.2% (M) 
66.5% (F) 
78.1% (M) 
59.5% (F) 
70.0% (M) 
32.2% (F) 
8.8% (M) 
20.8% 

Eurostat - sdg_05_20 
Eurostat — 
earn_ses_pub2s 

Eurostat — ilc_li02 (ages 
65+) 

Eurostat — lfsa_argan 

Eurostat — lfsa_ergan  

Eurostat — lfsi_pt_a 

EIGE gender Statistics 
database 

84% (F) 
82.7% (M) 

82.7% (F) 
81.1% (M) 

85.4% (F) 
85.8% (M) 

85.6% (F) 
85.7% (M) 

European Working 
Conditions Survey  

Note: Country-level results are available in Annex 3 — EU-25 and EU-28 figures for employment, labour market participation and part-
time work are weighted by the number of employees. EU-25 and EU-28 figures for elderly poverty are weighted by population.  
a  Figures  for  EU-25  exclude  Ireland  and  Greece  due  to  missing  data.  Figures  for  EU-28  also  exclude  Croatia.  b  Average  values  for 
women (F) and average values for men (M) from 15 to 64 years. c Croatia not included. e Data at end of the year. f Share of respondents 
who reported being very satisfied or satisfied with their job. Data are available for 2005, 2010 and 2015. Data reported refer to 2006 and 
2015 instead of 2006 and 2014. 

Overall, the baseline indicators highlight a disadvantage for women in the labour market, which 
also result in an increased risk of poverty at older age. In 2006, the average hourly wage among 
women  was  18%36  lower  than  the  average  hourly  wage  of  men  in  the  EU.  In  absolute  terms, 
this  corresponds  to  median  hourly  earnings,  which  approximate  the  ‘typical  earnings’  better 
than  the  average,  of  around  €2  per  hour  less  for  women.  A  decomposition  of  the  gender  pay 
gap in 2006 using wage data from 21 Member States shows the large proportion of the gender 
pay gap not accounted for by demographic and occupational characteristics (see Figure 1). This 
may  stem  from  gender-based  discrimination,  as  well  as  other  factors  that  cannot  be  directly 
measured, such as negotiating capacity.  

36 Excluding Ireland and Greece. See national data in Annex 3. 

9 

 
 
 
 
 
 
 
 
 
 
                                                           
Figure 1. Decomposition of the gender pay gap (2006) 

Note: Analysis carried out by the evaluation team using the Structure of Earnings Survey.  

In  2006,  women’s  participation  in  the  labour  market  was  substantially  lower  than  men’s,  in 
relation to activity rates and employment rates (about 14 percentage points (p.p.) difference for 
both) and the ratio of part-time work was about four times higher (see Table 1). The impact of 
these factors on pension entitlements may be one of the factors explaining the higher level of 
poverty37 among older women (+4.9 p.p.). The baseline indicators also highlight a clear ‘glass 
ceiling’,  where  women  are  limited  in  their  upwards  progression  within  an  organisation,  with 
women  making  up  only  an  estimated  9%  of  those  serving  on  the  boards  of  large  companies 
listed on the national stock exchange in 2006. While the intervention logic in Annex 4 suggests 
that  activity  and  employment  rates,  part-time  work  and  vertical  segregation  would  not  be 
directly  affected  by  EU  action,  they  are  nevertheless  closely  intertwined  with  the  gender  pay 
gap  and  must  be  considered  in  the  evaluation,  particularly  when  considering  the  impact 
attributed to the intervention versus other external factors.  

In 2006, job satisfaction among employed people was similar for women and men, with slightly 
higher  levels  for  women.  This  is  consistent  with  studies  that  found  women  report  higher  job 
satisfaction  despite  having  jobs  with  worse  conditions.  Research  shows  that  the  difference  in 
job  satisfaction  narrows  for  younger  and  more  highly  educated  women  working  in  male-
dominated  fields,  which  suggests  that  gender  differences  in  job  satisfaction  may  be  due  to 
gender differences in job expectations38.   

Finally,  in  2006,  gender-based  discrimination  was  perceived  as  widespread  by  an  average  of 
40%  of  the  EU  population,  with  a  significant  proportion  of  respondents  (an  average  of  27% 
across  the  EU)  reporting  that  gender-based  discrimination  had  increased  in  the  course  of  the 
previous 5 years39. 

37 Eurostat calculates the at-risk-of-poverty rate as the proportion of people with an equivalised disposable income (after social transfer) below 
60% of the national median equivalised disposable income after social transfers. Being a relative measure, the indicator does not necessarily 
imply a low standard of living. 
38 For example, see Clark, A., ‘Job satisfaction and gender: Why are women so happy at work?’ in Labour Economics, 4(4), 1997, pp. 341-372; 
Vlaedisavljevic,  M.  and  Perugini,  C.,  Gender  inequality  and  the  gender  job  satisfaction  paradox  in  Europe,  2018,  http://hermes-ir.lib.hit-
u.ac.jp/rs/bitstream/10086/29083/1/wp2017-9.pdf 
39  European  Commission,  Discrimination  in  the  European  Union,  Special  Eurobarometer,  2007,  Fieldwork:  June  —  July  2006, 
http://ec.europa.eu/commfrontoffice/publicopinion/archives/ebs/ebs_263_en.pdf. 

10 

 
 
 
                                                           
3.  PROCESS, METHODOLOGY AND LIMITATIONS  

This  evaluation  complements  existing  knowledge  from  the  2013  report  on  implementing  the 
Directive  and  the  2017  report  on  implementing  the  Recommendation,  which  identified 
persistent  problems with  the practical  enforcement  and legal  interpretation of the principle of 
‘equal pay for equal work or work of equal value’, a lack of transparency in pay systems and 
procedural obstacles. 

The analysis in this document is largely based on the outcomes of an external study40 (support 
study)  carried  out  by  ICF  in  2018/2019.  This  support  study  includes  extensive  data  on  the 
functioning of equal pay provisions within EU Member States. The data were gathered through 
desk and national research, including on national and CJEU case law, evidence from equality 
bodies,  a  targeted  stakeholder  consultation  survey,  interviews  with  national  stakeholders  and 
various national and EU experts, and data analysis including a decomposition of the gender pay 
gap  using  Structure  of  Earnings  Survey  microdata  (see  Annex  3).  The  other  source  for 
qualitative data is the outcome of the stakeholders’ consultations carried out by the European 
Commission  (see  Annex  2  for  more  details).  These  include  a  public  consultation  carried  out 
between 11 January and 5 April 2019 which received 386 replies and 16 position papers, and a 
targeted  expert  seminar  with  social  partners  (7 May  2019,  Brussels).  Quantitative  and 
qualitative  information  from  this  wide  range  of  sources  were  triangulated  and  synthesised  to 
generate findings for each evaluation question (see Annex 5). 

The  evaluation  faced  some  difficulties  in  producing  robust  quantitative  comparisons.  As 
mentioned (see also Annex 3), there are a number of caveats in the methodology for evaluating 
equal  pay provisions.  They mostly relate to  data  limitations, but the way  the legal  provisions 
are framed also plays a role. 

First and foremost, it is not possible to precisely identify the percentage of the gender pay gap 
resulting specifically from pay discrimination. This limitation has obvious implications for the 
assessment of the scope of the problem.  

As mentioned, the persistence of the gender pay gap (at an average level  of 15.7% in 201841, 
ranging from 3 % in Romania to 22.7% in Estonia) suggests gender bias on the labour market 
which might translate also into gender pay discrimination. Though it is not possible to directly 
measure  this  phenomenon,  there  is  a  large  public  perception  that  such  pay  discrimination 
exists42. According to a Eurobarometer survey43, 69% of EU citizens believe that women earn 
less than men for each hour of work44. This percentage, however, varies substantially across the 
Member States from 94% in Sweden to 31% in Romania (where 52% believe that women and 
men  earn  an  equivalent  wage).  When  asked  about  their  perceptions  of  pay  discrimination 
within their own company, people are less concerned, but many still believe there is a problem: 

40 Study to support the evaluation of the relevant provisions in Directive 2006/54/EC implementing the Treaty principle on ‘equal pay for equal 
work  or  work  of  equal  value’.  Available  at:  https://op.europa.eu/en/publication-detail/-/publication/fd8a4b90-5848-11ea-8b81-
01aa75ed71a1/language-en/format-PDF/source-117998205 
41  Eurostat,  Gender  pay  gap  statistics,  2020,  available  at:  https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender_pay_gap 
_statistics. 
42  A  recent  example  of  possible  discriminatory  practices  comes  from  the  first  phase  of  the  implementation  of  the  French  Index  A  recent 
example of possible discriminatory practices comes from the first phase of the implementation of the French Index. It showed that: (i) 1 out of 
three  companies  had  not  respected  the  legal  obligation  to  grant  to  mothers  returning  from  maternity  leave  the  same  increase  in  the  salary 
granted  to  colleagues  in  the  meantime  (in  undertakings  of  more  than  1000  employees  with  a  score  below  75/100)  and  (ii)  1  out  of  five 
companies had not respected the legal obligation to grant to mothers returning from maternity leave the same increase in the salary granted to 
colleagues  in  the  meantime  (in  undertakings  between  250  and  1  000  employees    with  a  score  below  75/100),  Available  at:  http://hauts-de-
france.direccte.gouv.fr/sites/hauts-de-france.direccte.gouv.fr/IMG/pdf/dp_egapro-ok-02-bd.pdf  
43 Eurobarometer, ‘Gender Equality 2017 – Summary Report’, Special Barometer No 465, 2017. 
44 A difference that about 90% of citizens consider ‘unacceptable’, varying from over 95 % in the Netherlands, Luxembourg, France, Sweden 
and Spain, to around 80 % in Poland, Austria and Romania (see also section 5.3). 

11 

 
 
 
                                                           
51% believe that  women, on average, are paid  the same as men, with  a maximum of 56% in 
Czechia.  

From  a  conceptual  point  of  view,  the  definition  itself  of  gender  pay  discrimination  can  be 
problematic.  Broadly  speaking,  asymmetries  in  the  opportunities  to  acquire  skills  and 
experience  translate  into  pay  differences.  It  is  therefore  incorrect  to  assume  that  gender  pay 
differences  linked  to  education  and  working  patterns  are  legitimate,  because  they  might  well 
reflect  discrimination  and  undervaluation  of  female  work  and  capacities  instead  of  different 
skills, qualifications and work experience. However, it is worth remembering that the purpose 
of  the  provisions  analysed  here  is  to  enforce  the  equal  pay  principle  i.e.  to  redress  specific 
situations where the same skills required to perform a specific job are remunerated differently 
depending  on  the  sex  of  the  worker.  While  it  is  reasonable  to  expect  that  correcting  these 
imbalances in the pay structure would ultimately also have an effect on the gender pay gap, the 
purpose of the provisions is not to correct all gender-motivated pay discrepancies (which could 
translate into closing the gender pay gap) but to enforce a fundamental right.   

The Blinder-Oaxaca decomposition45 of the gender pay gap identifies a ‘residual’ portion of the 
gender  pay  gap  that  gives  a  rough  quantitative  illustration  of  the  possible  relevance  of  pay 
discrimination  to  the  gender  pay  gap.  However,  this  portion  also  accounts  for  the  impact  of 
parenthood on wages and other aspects such as preferences, the relative negotiating advantage 
linked  to  scarcity  premiums,  or  individual  productivity  and  so  it  cannot  be  used  as  a  proxy. 
More broadly, it is not possible to provide an estimate of the extent to which pay differentials 
are gender motivated because there is no aggregate measure that allows measuring (direct and 
indirect)  discrimination  per  se.  It  can  only  be  gauged  indirectly,  looking  at  structural 
differences.  These  limitations  were  taken  into  account  in  the  evaluation,  which  does  not 
consider  that  the  unexplained  part  of  the  gender  pay  gap  only  result  from  gender 
discrimination46  However,  given  that  the  gender  pay  gap  shows  a  structural  /  systemic  pay 
difference across the economy that goes beyond the individual characteristics of working men 
and women, it is considered a good indicator of inequalities in access to work, progression and 
rewards; and as such relevant in discussing the equal pay issues. Such it is referred to in this 
evaluation also for lack of more specific indicators. 

Secondly, it is not realistic to expect that the gender pay gap can be substantially decreased by 
better enforcing equal pay laws. The core measures by the EU action address only some of the 
factors underlying the gender pay gap, with less of an effect on others. Consequently, even with 
effective enforcement of the existing EU legislation, wider problems affecting pay differences 
may  still  persist.  This  is  primarily  due  to  the  unequal  distribution  of  unpaid  work  between 
women  and  men.  Since  women  continue  to  take  on  more  responsibility  than  men  for  most 
domestic  and  caring  tasks  within  the  home47,  they  tend  to  work  fewer  paid  hours,  with 
consequences  for  pay  and  promotion.  In  this  context,  the  Directive  on  work-life  balance  for 

45 Although the Blinder-Oaxaca (BO) methodology is the prevailing approach used in the empirical work on wage gaps it has some limitations: 
First, the relationship between characteristics and wages is not necessarily linear, and recent data have been found to violate key implications of 
the Mincerian model (i.e. a single-equation models that explains income as a function of schooling and experience), which is the key input of 
the BO decompositions. Second, BO is informative only about the average wage gap decomposition, providing no clues about the distribution 
of the differences in pay. Third, BO fails to restrict its comparison to comparable individuals, which is likely to substantially upwardly bias the 
estimators  for  unexplained  differences  in  pay.  Other  methodologies  to  decompose  the  gender  pay  gap  (with  their  own  limitations)  are 
illustrated in Annex 8. 
46 Parts of the literature use a different approach for the decomposition of the gender pay gap (see Olsen, W.K.; Walby, S., ‘Modelling Gender 
Pay  Gaps’, Manchester: Equal Opportunities Commission,  EOC Working Paper Series, 2004, p. 80.  According to this estimate, in the UK, 
38%  of  the  gender  pay  gap  is  due  to  direct  discrimination  and  differences  in  the  labour  market  motivations  and  preferences  of  women  as 
compared with men.  Other estimates provide similar results. (See Annex 8 for details). 
47 A gender gap in unpaid working time is visible in all EU Member States, ranging from 6 to 8 hours in the Nordic countries to over 15 hours 
in Italy, Croatia, Slovenia, Austria, Malta, Greece and Cyprus. See Eurofound (2018), Striking a balance: Reconciling work and life in the EU, 
available at: https://www.eurofound.europa.eu/publications/report/2018/striking-a-balance-reconciling-work-and-life-in-the-eu 

12 

 
 
                                                           
parents  and  carers48  was  adopted  in  June  2019  specifically  to  support  more  equal  sharing  of 
caring  responsibilities  between  women  and  men,  thereby  creating  more  opportunities  for 
women  to  participate  in  the  labour  market.  The  Directive  is  accompanied  by  non-legislative 
measures  to  increase  the  availability  of  accessible,  affordable  and  high  quality  childcare  and 
remove  remaining  tax  disincentives  which  deter  second  earners,  who  are  most  often  women, 
from engaging in paid work or increasing their working hours. 

Thirdly,  particularly  if  they  work  part-time49,  women  face  persisting  gender  segregation  into 
particular  types  of  occupations,  firms  or  sectors.  This  kind  of  segregation  limits  the 
applicability  and  effectiveness  of  equal  pay  laws,  due  to  the  scarcity  of  male  comparators 
within  the  same  employing  organisation  undertaking  equivalent  work.  Since  the  principle  of 
equal  pay  is  set  in  EU  law  as  an  individual  right,  litigants  must  build  their  complaint  for 
discrimination on the direct comparison of male-female wage from the same employer. This in 
practice  excludes  the  possibility  of  comparing  ‘equivalent’  jobs  (in  terms  of  work  demands 
and/or  level  of  professional  skills)  across  occupations,  in  particular  between  male-dominated 
occupations  and  female-dominated  ones,  since  this  implies  different  employers.  As  a  result, 
segregation facilitates the persistent undervaluation of women’s work in certain professions and 
women  often  find  themselves  in  occupations  with  the  lowest  pay  scales.  With  new  and 
improved  rights  to  request  flexible  working  arrangements  in  any  sector,  the  2019  Work-Life 
Balance Directive could also help reduce this kind of occupational segregation (assuming it is 
not counter-balanced by a larger increase in female part-time in low paid sectors). These issues 
might also at least partly explain the scarcity of the number of equal pay cases which has led to 
a gap in a robust understanding of how EU legislation is implemented by courts. Few claims of 
gender  pay  discrimination  reach  the  national  courts,  as  confirmed  in  this  evaluation  (see 
Section  5.1).  Therefore,  the  conclusions  drawn  are  based  on  the  few  cases  identified  and 
suggest  an  issue  relating  to  access  to  justice  in  general.  Finally,  the  considerable  variation  in 
measures and approaches to implementing equal pay provisions across the EU Member States 
makes it challenging to draw overall comparisons and findings. 

4.  IMPLEMENTATION AND STATE OF PLAY 

The 2006 Directive consolidated EU law on equal  treatment  between women and men in  the 
area  of  employment  and  occupation  by  bringing  together,  modernising  and  simplifying  the 
provisions  in  previous  Directives  and  incorporating  case  law  from  the  CJEU.  It  added  a 
definition  of  pay,  consolidated  concepts  such  as  ‘the  reversed  burden  of  proof’  and 
‘victimisation’ and explicitly extended the application of equal treatment in occupational social 
security schemes in line with the CJEU’s case law. The transposition and implementation of the 
Directive  by  Member  States  focused  primarily  on  these  elements.  Article 33  of  the  Directive 
required Member States to bring into force the laws, regulations and administrative provisions 
necessary to  comply with this Directive by  15 August  2008 at  the latest  or to  ensure, by that 
date, that management and labour implement its provisions by way of agreement. 

The  Commission  examined  the  compliance  of  national  legislation  in  all  Member  States. 
Following detailed discussions with  Member States, and following the adoption of additional 
legislation in some Member States, the Commission considered that most issues of compliance 
were  resolved.  Infringement  proceedings  were,  however,  launched  in  2013  in  relation  to  3 

48 Directive (EU) 2019/1158 of the European Parliament and the Council of 20 June 2019, OJ L 188/79, 12.7.2019. 
49 The Gender gap in part-time employment from 23.6 to 21.1 as percentage of total employment from 2006 to 2018. Pay gaps can be analysed 
from  the  perspective  of  part-time  however  information  at  this  level  of  detail  is  not  available  for  all  EU  Member  States  (See 
http://ec.europa.eu/eurostat/product?code=earn_gr_gpgr2wt&language=en&mode=view ). 

13 

 
 
 
                                                           
Member  States.  One  set  of  proceedings  was  closed  in  2017  following  adoption  of  legislation 
regarding  return  to  work  after  paternity  and  adoption  leave  in  the  Member  State  concerned 
(Lithuania). At the time of writing, the remaining two cases are still open and being monitored 
(relating  to  the  definition  and  scope  of  compensation  in  Poland  and  the  scope  of  protection 
against  victimisation  in  Belgium).  The  Commission  is  in  discussions  with  2  Member  States 
regarding  other  questions  related  to  the  gender  pay  gap,  namely:  the  payment  of  certain 
categories  of  workers  who  are  absent  from  work  for  pregnancy-related  illness,  and  the 
effectiveness of the equality body. 

The 2013 Directive implementation report  

In its 2013 implementation report50, the Commission reviewed the transposition of the Directive 
in  all  Member  States.  14  Member  States  had  adopted  new  measures  or  amended  existing 
legislation  to  transpose  the  Directive51;  11  Member  States  already  had  legislation  in  place  in 
line with the Directive’s obligations52 and the 3 remaining Member States (Bulgaria, Romania 
and Croatia) introduced legislation as part of their accession to the EU.  

The  2013  report  assessed  in  particular  Member  States’  transposition  of  the  Directive’s  novel 
features  and  the  effectiveness  of  its  application  and  enforcement53.  It  highlighted  that  the 
practical application of the equal pay provisions was one of the Directive’s most problematic 
areas.  The  results  of  the  2013  assessment  of  the  implementation  of  the  relevant  equal  pay 
provisions of the Directive are further described in Section 5.1. 

The 2014 Pay Transparency Recommendation 

The 2013 findings on the application in practice of the equal pay provisions led to the adoption 
of  the  Recommendation  in  2014.  The  Recommendation  provides  guidance  to  help  Member 
States implement the equal pay principle more effectively and proposes measures to support the 
identification of unfair wage inequalities within companies and organisations.  

Table  2  below  lists  Member  States  that  have  revised  existing  or  adopted  pay  transparency 
measures,  grouped  by  the  time  of  adoption  or  amendment.  It  also  highlights  Member  States 
which  had  measures  in  place  prior  to  the  Recommendation  but  made  amendments  to  those 
measures  after 2014.  The table shows that 7 Member States maintained measures already in 
place before 2014 and 6 others amended or adopted transparency measures after the adoption of 
the  Recommendation.  These  measures  are,  however,  not  always 
the 
Recommendation.  For  example,  in  the  UK,  the  pay  reporting  measure  only  applies  to 
employers  with  250  or  more  employees,  unlike  the  ‘50  or  more’  set  out  in  the 
Recommendation.  In  Germany,  as  another  example,  the  pay  audit  measure  is  not  mandatory 
and only applies to companies with at least 500 employees. 

line  with 

in 

Table 2. Pay transparency measures adopted by type and time of adoption 

Time of 
adoption 

Right to pay 
information 

Pay reporting 

Pay audit 

Collective 
bargaining 

50  Report  from  the  Commission  to  the  European  Parliament  and  the  Council  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  final.  Available  at:  https://eur-lex.europa.eu/legal-
content/en/ALL/?uri=CELEX:52013DC0861. 
51 CZ, DK, EE, EL,  FR,  IT, CY,  LT,  PL, PT, SI,  SK, SE, UK. Source: 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 final. 
52 AT, BE, DE, ES, FI, IE, LV, LU, HU, MT, NL. Source: 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 final. 
53 In line with Article 31 of the Directive. 

14 

 
 
                                                           
Prior 2014 

FI (2004, amended 
in 2014) 

Amendment 
post 2014 

Adopted post 
2014 

DE (2017: 
companies of at least 
200 workers);  
ES (2019) 

AT (2011: companies of 
more than 150 workers);  
BE (2012);  
IT (2006: companies of 
at least 100 workers);  
FR (2013);  
UK (2010, amended in 
2014: companies of at 
least 250 workers) 

DK (2016);  
PT (2019) 

ES (2019);  
LT (2016) 

FI (2005, amended 
in 2014); 
SE (1991) 

BE (2012);  
LU (1965) 

SE (2017) 

FR (2018) 

DE (2017);  
FR (2019); 
PT (2019) 

Ireland and the Netherlands have an advanced draft of pay transparency legislation, but in the 
13 other Member States not listed above54, there are no pay transparency measures.  

The 2017 report on the implementation of the Pay Transparency Recommendation  

The  findings  of  the  2013  implementation  report  on  the  Directive  were  confirmed  in  the 
implementation  report  on  the  Recommendation55.  These  reports,  as  well  as  a  study  by  the 
European legal network for gender equality56, raise the following key issues which are explored 
further in Section 5.1: 

  Application of equal pay concepts: The concepts of ‘pay’, ‘equal work’ and ‘work of 

equal value’ are not defined uniformly across national legislation.  

  Possibility  of  justifying differences  in  pay:  in  pay  discrimination  claims,  some  courts 
accept  employers’  justifications  for  pay  differentials,  unduly  favouring  employers  and 
making access to justice difficult for victims. However, the report also notes that some 
Member States do not allow any such justifications. 

  Implementation  of  ‘the  reversed  burden  of  proof’  varies  among  Member  States  and 
can be unclear. The shift of the burden of proof, leading to a more equitable sharing of 
the burden of proof between the victim and the employer in cases of discrimination, is 
not sufficiently actionable, due to a lack of clear rules on the level of evidence required 
for a presumption of discrimination triggering this shift in burden of proof. 

  Limitation periods  vary  and, in  some Member States, they are so short that  they may 

not allow sufficient time for victims to make a claim.  

  Lack  of  deterrent  effect  of  penalties  and  low  compensation  levels:  compensation 
awarded by courts varies across countries, tends to be low and rarely accounts for non-
material damages. This does not motivate victims to claim their rights.  

  Costs of proceedings impede access to justice. The costs of legal proceedings to access 
justice,  both  as  regards  legal  representation  and  court  fees,  are  a  key  disincentive  for 
many victims, in particular in light of the low compensation levels even if successful.  

54 BG, CY, CZ, EE, EL, HR, HU, LV, MT, PL, RO, SI, SK. 
55  Report  from  the  Commission  to  the  European  Parliament,  the  Council  and  the  European  Economic  and  Social  Committee  on  the 
implementation of Commission Recommendation on strengthening the principle of equal pay between men and women through transparency 
— COM(2017) 671 final. 
56 Foubert P., The enforcement of the principle of equal pay for equal work or work of equal value A legal analysis of the situation in the EU 
Member States, Iceland, Liechtenstein and Norway, ELLN for the European Commission, 2017. 

15 

 
 
 
 
 
                                                           
  Lack of knowledge of gender pay discrimination rules on the part of employees. There 
is  sometimes  limited  knowledge  of  equal  pay  legislation  and  how  to  enforce  existing 
rights on the part of employees, trade unions, lawyers and even judges. 

  Lack  of  clarity  on  and  awareness  of  the  powers  of  national  equality  bodies.  The 
powers of national gender equality bodies vary across the EU and only some Member 
States allow equality bodies to represent individuals in equal pay claims.  

  Lack  of  promotion,  development  and  use  of  gender-neutral  job  evaluation  and 
classification  systems.  While  in  some  Member  States,  legislation  or  collective 
agreements  explicitly  require  job  evaluation  and  classification  systems  to  be  gender-
neutral, in others there is no such requirement, or at least not an explicit requirement. 
  Barriers to pay transparency and lack of transparency in pay systems. Accessing pay 
information is difficult, which restricts awareness of gender pay discrimination and the 
ability to support pay discrimination claims. Individual pay information is confidential, 
which undermines pay transparency. 

This evaluation 
This evaluation investigates the extent to which the issues identified by the 2017 report remain 
problematic in the Member States. Table 3 below summarises the assessments carried out as 
part of the support study.  

Table 3. State of play — mapping of the issues by relevance 

Issue 
Issue of legal clarity on 
concept of equal pay for 
equal work or work of equal 
value 
Access to justice and 
defence of rights 

Absent 
BE, IE, 
LU, NL, 
PL 

Limited 
CY, DE, ES, 
HR, PT, SE, UK 

Moderate 
FR, LV, MT, SK  

DK, FR, HU, 
IT, PT 

AT, CY, ES, FI, IE, LT, 
MT, SE 

Compensation or reparation 
to victims  

CY, ES, FR, IE, 
LU, MT 

AT, BE, BG, CZ, DK, FI, 
PT, RO, SE, UK 

Application of the reversed 
burden of proof  

SE  

BE, DE, DK, ES, FI, FR, 
HU, IE, IT, LT, LU, LV, 
MT, PT, RO, UK 
CZ, FI, HU, PL, RO, SE, 
SI, SK, UK  

BE, ES, IE, IT, 
LT, LU, NL  

Promotion, development and 
use of gender-neutral job 
evaluation and 
classifications 
Clear powers and promotion 
of equality bodies 

BE, CZ, 
FR, HU, 
LU 

DK, FI, HR, LT, 
NL, RO, SE 

CY, DE, ES, IT, LV, MT, 
SI  

Significant 
AT, BG, CZ, DK, 
EE, EL, HU, IT, 
LT, SI, FI 

BE, BG, CZ, DE, 
EE, EL, HR, LU, 
LV, NL, PL, RO SI, 
SK, UK 
DE, EE, EL, HR, 
HU, IT, LT, LV, 
NL, PL, SI, SK 
AT, BG, CY, CZ, 
EE, EL, HR, NL, 
PL, SI, SK 
AT, BG, CY, DE, 
DK, EE, EL, FR, 
HR, LV, MT, PT   

AT, BG, EE, EL, 
IE, LU, PL, PT, 
SK, UK 

Source: ICF country fiches (2019). 

5.  ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS 

The  EU  law  action  was  evaluated  on  the  basis  of  five  criteria:  effectiveness,  efficiency, 
relevance, coherence and EU added value. 

16 

 
 
  
 
 
 
 
 
5.1.  Effectiveness  

The assessment of effectiveness considers how successful EU action has been in achieving or 
making  progressing  to  achieving  its  objectives.  Performance  indicators  allow  the  extent  to 
which that purpose has been achieved to be measured. As summarised in the intervention logic 
(see Annex 4), the needs that the Directive aimed to address were on three interlinked levels:  

1.  the guarantee of an EU fundamental right, i.e. non-discrimination on grounds of sex; 
2.  the economic necessity to facilitate female labour market participation by removing one 

of many barriers; and 

3.  the enforcement of the principle of equal pay between women and men enshrined in the 

Treaty.  

Since  it  is  not  possible  to  measure  specifically  the  impact  on  gender  pay  discrimination  of 
measures driven by the EU action, because it is not possible to disentangle the portion of the 
gender pay gap linked to it, the impact of these measures can be only indirectly gauged through 
the broader impact on gender equality in the labour market and society. 

The  Directive’s  aim,  reinforced  by  the  Recommendation,  is  ‘to  ensure  the  implementation  of 
the  principle  of  equal  opportunities  and  equal  treatment  of  men  and  women  in  matters  of 
employment  and  occupation’  (Art. 1).  This  broader  objective  builds  on  the  three  specific 
aspects mentioned in Section 2.1:  

1)  legal  clarity  on  the  application  of  the  principle  of  equal  opportunities  and  equal 
treatment, including the principle of equal pay for equal work or work of equal value, 
especially by clarifying the concepts of ‘pay’, ‘equal work’, and ‘work of equal value’;  
2)  facilitating respect for EU rights on equal pay by putting in place adequate judicial or 
administrative  procedures  for  monitoring  and  enforcement  of  the  Directive’s 
requirements e.g. the introduction of job classification and evaluation systems based on 
the same criteria for both women and men; and  

3)  facilitating  access  to  justice  with  legal  protection  for  a  complainant  by  shifting  the 
burden of proof to the respondent where there is a prima facie case of discrimination. 

The analysis of the effectiveness of EU action in relation these three aspects relies mostly on a 
qualitative  assessment  provided  by  national  experts  involved  in  the  evaluation.  Specific 
quantitative  data  to  construct  relevant  indicators  for  the  broader  impacts  of  the  measures 
hypothesised  in  the  intervention  logic  (see  Annex  4)  are,  for  the  reasons  mentioned  above, 
scarce. Since external economic and social factors (such as economic growth and demographic 
trends)  are  more  likely  to  shape  the  overall  trend  of  the  gender  pay  gap,  it  is  not  possible  to 
disentangle  the  specific  effect  of  the  Directive.  Member  States  were  starting  from  different 
positions in 2006 as this was a ‘recast’ directive integrating previous directives and case-law of 
the  Court  of  Justice.  Therefore,  the  degree  of  implementation  of  the  Directive  itself  does  not 
reflect  the  level  of  compliance  with  the  Directive’s  content  in  the  Member  State  concerned. 
Nevertheless,  a  quantitative  analysis  of  the  trend  of  the  relevant  indicators  selected  for  the 
baseline and an econometric analysis of gender pay gap components attempts to shed light on 
the effects at macro-level.  

5.1.1. Implementation of the concepts of ‘equal pay’, ‘same work’ and ‘work of equal 
value’ in national legislation and practice 

The concepts of ‘pay’, ‘equal pay’, ‘same work’ and ‘work of equal value’ are derived directly 
from  Article 157  TFEU.  The  Directive’s  primary  objective,  set  out  in  the  first  recital,  was  to 
clarify the provisions of existing directives implementing these Treaty provisions, in particular 

17 

 
 
by incorporating certain developments from the case-law of the CJEU, including regarding the 
legal concepts of ‘equal pay’, ‘same work’, and ‘work of equal value’.   

The concept of ‘pay’ 
The  CJEU  interpreted  the  concept  of  ‘pay’  to  include  not  only  salary,  but  also  additional 
benefits such as bonuses, overtime compensation, travel facilities, compensation for attending 
training, payments in case of dismissal, statutory sick pay, statutory required compensation and 
occupational  pensions.  In  order  to  clarify  the  concept  of  ‘pay’,  Article 2(e)  of  the  Directive 
recalls the Treaty definition of ‘pay’ as ‘the ordinary basic or minimum wage or salary and any 
other consideration, whether in cash or in kind, which the worker receives directly or indirectly, 
in respect of his/her employment from his/her employer’. The Directive took account of CJEU 
case-law clarifying the concept of ‘pay’57. As such, the concept of ‘pay’ in the Directive also 
includes: 

  all forms of occupational pensions58 (recital 13); 
  benefits from  pension schemes for public servants  if those benefits  payable under 
the  scheme  are  paid  to  the  worker  by  reason  of  his/her  employment  relationship 
with  the  public  employer,  even  if  such  schemes  form  part  of  a  general  statutory 
scheme. That will be the case if the pension scheme concerns a particular category 
of  workers  and  its  benefits  are  directly  related  to  the  period  of  service  and 
calculated by reference to the public servant’s final salary (Article 7(2) and recital 
14). 

In  addition,  the  Directive  clarifies  that  an  inequality  in  employers’  contributions  paid  under 
funded defined-benefit schemes which is due to the use of actuarial factors differing according 
to sex does not come in the scope of Article 157 TFEU (Article 9(1)(h) and recital 15). While 
actuarial  factors  differing  according  to  sex  cannot  be  used  to  calculate  male  and  female 
workers’ contributions (Article 9(1)(j)), the use of such differing actuarial factors to calculate 
employers’  contributions  is  under  certain  circumstances  permitted  by  the  Directive  as  not 
contrary  to  the  principle  of  equal  treatment  (Article  9(1)(j)).  Recital  16  further  clarifies  to 
which elements of funded defined-benefit schemes this exemption may apply.  

The Directive also draws attention to the content of Protocol 17 concerning Article 141 (now 
157)  of  the  TFEU,  according  to  which  benefits  payable  under  occupational  social  security 
schemes are not to be considered as remuneration insofar as they are attributable to periods of 
employment prior to 17 May 1990, except in some well-defined cases. 

According  to  Better  Regulation  standards59,  the  definition  of  ‘pay’  was  considered  to  be  a 
‘substantial  change’  compared  to  the  pre-existing  directives.  This  required,  according  to 
Article 33 of the Directive, explicit transposition in national law. 

The Directive’s definition is broad and encompassing, but lacks the necessary complexity and 
precision that characterises the CJEU case-law. All Member States but six60 have implemented 
the  concept  of  pay  contained  in  the  Directive61.  In  the  UK  and  Latvia,  where  no  codified 

57 See, for example, Case C-58/81, Commission of the European Communities v Grand Duchy of Luxembourg, ECLI:EU:C:1982:215; Case C-
171/88,  Rinner-Kulhn  v  FWW  Spezial-Gebaudereinigung  GmbH,  ECLI:EU:C:1989:328;  Case  C-147/02  Alabaster  v  Woolwich  plc  and 
Secretary  of  State  for  Social  Security,  ECLI:EU:C:2004:192;  Case  C-342/93,  Gillespie  and  Others  ECLI:EU:C:1996:46;  Case  C-278/93, 
Freers  and  Speckmann  v  Deutsche  Bundepost,  ECLI:EU:C:1996:83;  Case  C-12/81,  Eileen  Garland  v  British  Rail  Engineering  Limited, 
ECLI:EU:C:1982:44;  Case  C-360/90,  Arbeiterwohlfahrt  der  Stadt  Berlin  e.V.  v  Monika  Bötel,  ECLI:EU:C:1992:246;  Case  C-33/89,  Maria 
Kowalska v Freie und Hansestadt Hamburg, ECLI:EU:C:1990:265. 
58  Recital  13  of  the  Directive  based  on  CJEU  case  C-262-88,  Douglas  Harvey  Barber  v  Guardian  Royal  Exchange  Assurance  Group, 
ECLI:EU:C:1990:209. 
59 European Commission, Better Regulation: Guidelines and Toolbox. https://ec.europa.eu/info/better-regulation-guidelines-and-toolbox_en. 
60 AT, FI, IT, LV, SE, UK 
61 National country fiches. 

18 

 
 
                                                           
definition  exists,  national  case-law  has  developed  a  definition  in  line  with  EU  law62.  In  two 
Member States Lithuania and Romania) which have implemented the definition, uncertainty in 
the  interpretation  of  the  law  remains.  This  may  be  due  to  an  incomplete  implementation:  for 
instance,  indirect  payments  are  not  mentioned  in  the  Lithuanian  law,  thus  excluding  various 
benefits or services provided by third parties (including insurance or pension benefits) from the 
domestic  concept  of  pay63.  Finally,  in  the  Netherlands  and  Portugal,  experts  have  noted  that 
even if the definitions of ‘pay’ are not as well-developed as in EU legislation, the meaning is 
the same in practice. 

The concepts of ‘same work’ and ‘work of equal value’ 

The Directive does not contain a binding definition of ‘same work’ and ‘work of equal value’ 
(these concepts are only referred to in Recitals 9 and 10 of the Directive). In order to determine 
whether workers are performing the same work or work of equal value, it should be determined 
whether  they  can  be  considered  to  be  in  a  comparable  situation.  In  order  to  make  that 
determination, a range of factors should be taken into account, including the nature of the work 
and training and working conditions. Furthermore, under certain conditions established by the 
CJEU64,  the  comparison  should  not  necessarily  be  limited  to  situations  in  which  men  and 
women work for the same employer. 

The 2014 Pay Transparency Recommendation invited Member States to clarify the concept of 
‘work of equal value’ in their national legislation. It indicated that the value of work should be 
assessed  and  compared  based  on  objective  criteria,  such  as  educational,  professional  and 
training requirements, skills, effort and responsibility, work undertaken and the nature of tasks 
involved. 

Even if EU Member States have included the concepts  of ‘equal/same work’, ‘work of  equal 
value’ or ‘equivalent work’ in their legislation, and despite the guidelines given by the CJEU 
that  are  incorporated  in  the  preamble  to  the  Directive  and  the  2014  Pay  Transparency 
Recommendation, these concepts still are not always defined in national legislation, and where 
they are defined, it is not done uniformly in various Member States. This affects the ability of 
complainants  in  pay  discrimination  cases  to  establish  a  valid  comparator;  moreover,  it  also 
creates  substantially  heterogeneous  situations  in  EU  Member  States.  Some  countries  (BG,  FI, 
IT, LV, MT65, PL66, SI, EE) have no legal definition at all, and even where a definition exists (CZ, 
DK, EE, EL, FR, HR, HU, IE, PT, SE, SK, UK) experts report practical problems in clarity and 
lack of understanding of the concepts. 

Experts  report  difficulties,  for  instance,  in  identifying  a  ‘comparator’  because  national 
legislation  is  restrictive  on  what  is  considered  ‘work  of  equal  value’.  The  identification  of  a 
comparator  is  a  crucial  parameter  in  determining  whether  work  may  be  considered  ‘of  equal 

62 For instance, despite the restrictive definition of pay in the Latvian Labour Code, the Supreme Court interpreted the concept of pay according 
to  the  case-law  of  the  CJEU  within  the  meaning  of  equal  pay  in  a  Decision  of  the  Supreme  Court  (15 December  2010)  in  case  No.  SKC-
694/2010. Available at http://www.at.gov.lv/files/archive/department1/2010/694-10.pdf 
63 European Network of Legal Experts in Gender Equality and Non-discrimination (2016), A comparative analysis of gender equality law in 
Europe. 
64  Case  C-320/00,  A.G.  Lawrence  and  Others  v  Regent  Office  Care  Ltd,  Commercial  Catering  Group  and  Mitie  Secure  Services  Ltd, 
ECLI:EU:C:2002:498. 
65  Although  there  are  no  definitions  laid  down  in  national  law,  jurisprudence  has  defined  the  concept  and  detailed  the  parameters  allowing 
comparison of jobs of equal values. This jurisprudence is further detailed in the box below ‘Good practice examples’. 
66  The  Polish  Supreme  Court,  in  its  ruling  of  9 February  2007  (I  PK  222/06),  has  specified  the  parameters  to  take  into  account  in  the 
comparison. According to the Court, ‘it is possible to compare the remuneration for the work of the claimant with another person employed on 
the  position  of  an  accountant,  while  taking  into  account  many  other  circumstances  (professional  qualifications,  previous  work  experience, 
scope of tasks associated with the working position, responsibility, physical workload or amount of work) serving as a criteria of evaluation of 
their work.’ This jurisprudence is sufficiently clear and allows specific parameters to be laid down, thus preventing a lack  of understanding of 
the concept in practice. 

19 

 
 
                                                           
value’. The CJEU has developed jurisprudence67 to determine whether two different groups of 
workers perform  work of equal  value, taking into account  the overall nature of the work, the 
responsibility  involved,  the  training  requirements  and  the  working  conditions.  The  CJEU 
indicated — as far back as 1982 — that Member States should ensure workers can claim before 
a competent authority, by a binding decision and through effective means, the application of the 
right  to  equal  pay  for  work  of  equal  value.  That  authority,  which  can  be  courts,  would  be 
empowered  to  assess  which  work  has  the  same  value  in  application  of  the  Treaty  and  the 
Directive68. However, the lack of parameters for the implementation of the concept can lead to 
difficulties in its application by courts. 

National legislation does not always elaborate on the definitions and parameters, as this is not 
imposed by the Directive and thus is left to the discretion of the courts’ interpretation. Only 10 
Member  States69  have  laid  down  specific  parameters  and  criteria  for  establishing  the  equal 
value  of  the  work  performed  (BG,  HR,  CZ,  FR,  HU,  IE,  PL,  PT,  SE,  the  UK).  Since  the 
number  of  cases  brought  before  the  courts  is  low,  it  is  difficult  to  develop  consistent 
jurisprudence; at the same time, as in a vicious circle, there is little incentive to file complaints. 

The CJEU has held that although the comparator does not necessarily need to be employed at 
the  same  time  as  the  complainant,  but  comparisons  must  be  made  ‘on  the  basis  of  concrete 
appraisals of the work actually performed by employees of different sex’70. To date, 11 Member 
States71  require  an  actual  comparator  to  be  identified,  while  11  others72  allow  a  hypothetical 
comparator.  In  the  6  remaining  Member  States73,  case-law  and  national  legislation  remain 
unclear on this point. 

The requirements for a real-life comparator can be very narrow. In seven Member States74, the 
comparator  must  be  employed  by  the  same  employer,  thus  preventing  comparisons  across 
sectors and companies. According to some authors, this requirement reduces the effectiveness 
of  the  concept  of  ‘work  of  equal  value’  in  highly  segregated  labour  markets75  and  limits  the 
probability  of  finding  an  individual  undertaking  similar  tasks  within  the  company  or  similar 
companies in the same highly segregated sector.  However, in some Member States, wages in 
these sectors (such as education and healthcare) are set by the public sector. While pay may be 
equal within the sector, pay inequality can transpire when compared to highly segregated male-
dominated  sectors  with  similar  training  requirements  and  working  conditions,  where  equal 
value is harder to establish. Those male-dominated sectors are likely to be private sector driven 
with  higher  set  wages.  This  contributes  to  the  gender  pay  gap  and  arises  from  indirect 
discrimination, which is harder to establish. 

In  the  UK,  in  the  ASDA  case76,  the  claimants  (mostly  women  working  in  the  respondent’s 
supermarkets)  were  entitled  to  compare  themselves,  for  equal  pay  purposes,  to  employees 
working in the respondent’s distribution operation. Even though they did not work in the same 
establishment,  claimants  claimed  that  ‘common  terms  of  employment’  applied  to  both  retail 

67 CJEU Case C-400/93 Royal Copenhagen, ECLI:EU:C:1995:155; Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, 
ECLI:EU:C:1999:241; Case C-381/99 Brunnhofer, ECLI:EU:C:2001:358; Case C-427/11 Margaret Kenny and Others v Minister for Justice, 
Equality and Law Reform and Others [2013] ECLI:EU:C:2013:122, paragraph 28. 
68 CJEU Case C-61/81 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland, ECR 1982 -02601. 
69 European network of legal experts in gender equality and non-discrimination, Report on pay transparency in the EU: A legal analysis of the 
situation  in  the  EU  Member  States,  Iceland,  Liechtenstein  and  Norway,  2016.  Available  at:  https://publications.europa.eu/en/publication-
detail/-/publication/329c3e47-2bd8-11e7-9412-01aa75ed71a1/language-en. 
70 Case 129/79 Macarthys (1980) ECR 1275 and Case C-200/91 Coloroll Pension Trustees Ltd v Russell (1994) ECR I-4389. 
71 EE, EL, FI, HR, IE, LT, LU, NL, MT, PL, SK identified by national experts involved in the evaluation. 
72 AT, DK, ES, FR, HU, IT, MT, PT, RO, SE, UK identified by national experts involved in the evaluation. 
73 BE, BG, DE, CY, LV, SI. 
74 NL, SK, EE, HR, MT, EL and PL. 
75 Barnard, C., EU Employment Law – Fourth Edition, 2012. 
76 Asda Stores Ltd v Brierley CA [2019] EWCA Civ 44 the Court of Appeal Currently, the CJEU is looking at a similar case - C-624/19 Tesco. 

20 

 
 
                                                           
and  distribution  workers.  The  Court  agreed  that  the  respondent  applied  common  terms  and 
conditions to both retail and distribution workers ‘wherever they work’. The phrase ‘wherever 
they  work’  allows  reference  to  comparators  who  work  in  a  different  workplace  because  the 
nature  of  their  tasks  is  different.  National  experts  involved  in  the  evaluation  emphasise, 
however, that the use of such flexible comparators remains very rare. 

Finding the right comparator may be even more challenging in Member States77 where secrecy 
or confidentiality clauses regarding pay are included in employment contracts. In Luxembourg, 
for instance, courts have denied access to information about colleagues’ pay in several cases on 
this basis78.   

Allowing  reference  to  a  hypothetical  comparator  enables  more  effective  correction  of  the 
gender  pay  gap  in  highly  segregated  labour  markets79.  In  France,  Portugal  and  Spain,  a 
comparison may be made with employees that previously worked in the same job.  In France, 
Hungary  and  Denmark,  claimants  can  argue  that  a  discriminatory  preference  exists  without 
referring to any particular employee as a comparison.  

Finding the right comparator depends on many factors. It will be more difficult in the absence 
of established job evaluation/classification systems and in the absence of pay transparency and 
pay information rights. In Member States where pay inequalities are not reported, it is evidently 
very difficult to find a real-life comparator with a higher salary.  

The lack of clear concepts used to evaluate whether men and women receive equal pay and of 
clear  assessment  criteria  for  comparing  different  jobs  is  a  major  obstacle  in  addressing  pay 
discrimination,  due  to  the  gender-segregated  structure  of  the  labour  market  and  the 
undervaluation of female-dominated professions80. 

Conclusion on the effectiveness of EU action concerning the clarity of equal pay concepts 

To  ensure  enforcement  of  the  fundamental  right  to  equal  pay,  the  concepts  of  ‘pay’,  ‘same 
work’  and  ‘work  of  equal  value’  must  be  clarified.  While  the  Directive  has  improved  the 
consistent interpretation of these concepts, they remain difficult to circumscribe in practice. 15 
national  legal  experts  rated  the  relevance  of  the  problem  as  ‘moderate’81  or  ‘significant’82, 
leaving  12  experts83    considering  it  of  ‘limited’84  or  no  importance85.  Over  one  third  of  the 
respondents in the public consultation highlighted the lack of legal clarity as the main obstacle 
to the effective implementation of the equal pay principle. 

Both the European Parliament86 and the European legal experts on gender equality87 point out 
that most Member States simply transposed the  provisions of the Directive textually,  without 

77 Member States where the use of confidentiality clauses is allowed and routinely used are DE, EE, IE, HR, HU, LV, MT, LV. 
78  This  was  the  case  in  the  following  judgments:  Cass.  Soc.  28 September  2004  No 03-41825; CA  13 July  1995,  n°16893;  CA  7 December 
2015, n°39457; CA 14 July 2016, n°41026; ICF (2019), Country fiche. 
79 Barnard, C., EU Employment Law – Fourth Edition, 2012. 
80 Opinion of the Advisory Committee on Equal Opportunities for  Women  and Men on the effectiveness of the current legal framework on 
equal pay for equal work or work of equal value in tackling gender pay gap, June 2009. 
81 FR, LV, MT, SK. 
82 AT, BG, CZ, DK, EE, EL, HU, IT, LT, SI, FI. 
83 The Spanish expert stated that it was not possible to evaluate the implementation and understanding of the legal clarify of the concept of 
equal pay for equal value, given recent legal developments in 2019. 
84 CY, DE, ES, HR, PT, SE, UK. Note that in Croatia, despite a clear definition in the legislation and an extensive legal framework detailing the  
obligation stemming from the concept of equal pay for work of equal value, it is yet not understood in practice. 
85 BE, IE, LU, NL, PL. Note that although the legal definitions of the concepts are clear under national law, they are very restrictive in the 
Netherlands. Equal work or work of equal value can only be identified with a comparator within the same company of the alleged victim, as 
underlined in Article 7(1) of the Equal Treatment Act, available at: https://wetten.overheid.nl/BWBR0003299/2015-07-01 (accessed 19  June 
2019). 
86  Motion  for  a  European  Parliament Resolution  (2015),  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 (2014/2160(INI)) accessed at: http://www.europarl.europa.eu/doceo/document/A-8-2015-0213_EN.html  

21 

 
 
                                                           
any further guideline or indication on how to apply them. This leads to a lack of parameters and 
indicators permitting implementation at national level.  

The Court of Justice has played a very significant role in ensuring enforcement of the right to 
equal pay between men and women. First of all, the Court has given substantial guidelines on 
how to interpret the concepts used to guarantee equal pay88. In addition, the Court has ensured 
that workers have the right  to  effectively  claim  their rights  in  practice:  in case C-61/8189, the 
CJEU, with regard to the predecessor of the Directive, namely Directive 75/117/EEC, held that 
Member  States  must  guarantee  the  right  of  workers,  in  the  absence  of  a  job  classification 
system, to  claim before an appropriate authority  that their work is of the same value as other 
work, and, if that is found to be the case, to have their rights under EU law acknowledged by a 
binding  decision.  The  case  related  to  workers  in  the  UK,  who  were  only  able  to  claim  their 
right to equal pay on the basis of a job classification system. Such a system was, however, not 
mandatory for employers. As a result, people who worked for employers that did not have a job 
classification system were not able to claim their rights. The Court held that UK had not taken 
the necessary measures to ensure that the principle of equal pay is applied. 

5.1.2. Effectiveness of EU action in terms of access to justice 

The  Directive  contains  a  number  of  important  procedural  provisions90  which  are  key  to 
ensuring enforcement of the equal pay principle. These provisions include:  

 
 

 

 

the opportunity to defend victims’ rights;  
the  sharing  between  employers  and  victims  of  the  responsibility  to  prove  the 
absence/presence of discrimination where a prima facie case is established;  
the curtailing of retaliation against employees  who complain  about  pay  discrimination 
(such behaviour is known as ‘victimisation’);  
the  incentives  to  seek  justice  through  the  payment  of  compensation  or  reparation  to 
victims of discrimination.  

All  of  these  provisions  are  considered  important  by  national  experts  and  respondents  in  the 
public  consultation.  Nevertheless,  several  problems  have  been  highlighted  as  regards  their 
application in practice. In general, national experts consider the protection against victimisation 
entirely satisfactory in four Member States. The application of the rules on the shared burden of 
proof is considered the most problematic issue in 27 Member States, followed by defence rights 
(23)  and  compensation  (22).  A  detailed  assessment  is  presented  below,  broken  down  by 
provision.  

Defence of rights (Article 17) 

Article 17 requires Member States to ensure access to judicial procedures for the enforcement 
of  the  rights  and  obligations  granted  by  the  Directive.  Such  access  must  be  available,  after 
possible  recourse  to  conciliation  procedures  and  even  after  the  end  of  the  employment 
relationship in which the discrimination is alleged to have occurred. In addition, the Directive 
provides that Member States must ensure that organisations or other entities with a legitimate 
interest may act on behalf or in support of discrimination victims in judicial or administrative 

87 Burri. S., Annex I — Legal aspects and direct and indirect discrimination, in the Implementation Assessment of the Directive 2006/54/EC 
(‘Recast Directive’) for the European Parliament Committee on Women’s Rights and Gender Equality FEMM, 2015, p. 39. 
88 S.Burry, National cases and good practices on equal pay, ELLN for the European Commission, 2017, Available at:   
https://ec.europa.eu/info/sites/info/files/ equalpaygoodpractices.pdf , p.9.  
89 Case C-61/81 Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland, ECR 1982-02601. 
90 Article 17 (defence of rights), Article 18 (effective, proportionate and dissuasive compensation or reparation), Article 19 (shared burden of 
proof) and Article 24 (protection against dismissal or other adverse treatment). 

22 

 
 
                                                                                                                                                                                        
proceedings.  Finally,  Article 17(3)  provides  that  the  time  limits  to  bring  actions  remain 
exclusively governed by national law.  

The support of victims by organisations or other entities with a legitimate interest 
Article 17(2) is implemented in Member State legislation by enabling collective redress or by 
allowing victims to be represented in court by certain organisations such as trade unions, NGOs 
or equality bodies (See Table 4 below). 

Table 4. Organisations that can act on behalf or in support of victims 

Equality body 

Trade unions 

NGOs with 
legitimate interest 

Other 

18: BE, DK, EE, 
EL, ES, FI, FR, 
HR, HU, IE, IT, 
LV, NL,  PL, SE, 
SI, SK, UK 

26: AT, BE, BG, 
CY, DE,  DK, EE, 
EL, ES, FI, FR, 
HU, IE, IT, LT, 
LU, LV, MT, NL, 
PL, PT, RO,  SE, 
SI, SK, UK 
Source: ICF (2019), Country fiches; Equinet website  

20: BE, BG, CY, 
CZ, EL, ES, FR, 
HR, HU, IE, IT, 
LT, LU, LV, MT, 
NL, SE, SI, SK, 
UK 

AT: Ombudsman supports before the Equal 
Treatment Commission  

BG: equality body is a quasi-judicial body 
issuing decisions 

CZ, FR, NL, UK: Collective action allowed 

The degree of involvement of these organisations varies. In 18 Member States, equality bodies 
have  the  power  to  bring  cases  to  court  or  to  represent  the  claimant  before  courts  or 
administrative  bodies.  In  Member  States  where  the  equality  body  is  not  empowered  to  bring 
cases to court, it can nevertheless assist and advise victims (e.g. AT) and, in some cases, issue 
binding  (BG,  CY,  LT,  MT,  PT,  RO)  or  non-binding  decisions  (CZ,  DE,  FR,  LU).  Collective 
action is possible in only four Member States (CZ, FR, NL, UK).  

Some  legal  experts  (especially  from  EL,  LT,  LU,  SI  and  UK)  noted  that  while  organisations 
may be empowered by law to bring cases or represent victims before courts, in practice they do 
not  make  use  of  these  opportunities,  usually  because  of  lack  of  resources  or  expertise.  Such 
organisations    report  being  ill-equipped  and  insufficiently  funded  to  handle  the  complex  and 
lengthy  litigation  that  equal  pay  claims  often  involve.  Some  opt  to  support  strategically 
important equal pay cases only.   

Limitation periods 
One  important  problem  highlighted  by  experts  and  stakeholders  concerns  the  length  of 
limitation periods, which remain exclusively governed by national law (Article 17(3)). In some 
Member  States  (DE,  LV,  EE,  SI),  the  time  limit  to  bring  a  case  to  court  is  simply  too  short, 
ranging from 30 days to 3 months. Victims need time to gather the necessary evidence, which 
can  be  a  complex  and  difficult  exercise,  particularly  if  there  is  no  transparency  on  pay 
structures  and  wages.  Victims  therefore  often  lack  the  time  to  take  action  once  they  become 
aware of the discrimination. Some victims already move on to another job before considering 
filing  an  action  against  their  previous  employer.  Many  victims  decide  simply  not  to  bother 
because  of  the  unsurmountable  difficulties  involved  in  taking  the  necessary  action  within  the 
required time limits. 

Effective compensation or reparation (Article 18) 

The  Directive  requires  Member  States  to  ensure  real,  effective,  dissuasive  and  proportionate 
compensation or reparation for loss and damage sustained as a result of pay discrimination on 
the grounds of sex. Member States must not impose a prior upper limit on the compensation or 
reparation, unless the employer can prove that the only damage suffered by the claimant is the 
refusal to take his/her job application into account. 

23 

 
 
As presented in Table 5 below, 18 Member States ensure compensation for material damages; 
non-material damages may be compensated in 14 Member States.  

The level of  compensation is  usually  (e.g. in  AT, BE,  FI,  IT) calculated  by the courts taking 
into account the circumstances of the individual case, such as the nature, extent and duration of 
the discrimination. In 13 Member States, the level of financial compensation may be up to the 
difference between the victim’s wage and the wage of the comparator. In two countries, fixed 
compensation  amounts  have  been  identified.  In  Belgium,  the  victim  can  opt  for  either  a 
standard amount, which is 6 months’ salary covering both material and non-material damage, 
or  the  amount  of  the  damage  actually  suffered  by  the  worker.  As  this  system  does  not  fix  a 
prior upper limit, it can be considered in line with the Directive.  

In Spain, the compensation must aim to restore, as far as possible, the integrity of the victim to 
the  situation  prior  to  the  injury,  as  well  as  contribute  to  preventing  harm.  In  Sweden,  the 
Discrimination  Act  requires  the  compensation  to  fulfil  both  a  reparative  and  a  preventative 
purpose.  Even  though  the  preventative  function  was  introduced  (in  2008)  to  promote  higher 
compensation levels, damages awarded generally remain low.  

Table 5. Types of compensation and reparation 

Levelling up 

Material damages 

Non-material damages  Fixed compensation 

13: AT, DE, DK, EL, FR, 
HR, HU, IE, LU, MT, 
NL, PT, UK 

18: BE, BG, CY, CZ, EL, 
ES, FI, FR, HR, IT, LT, 
LV, MT, PL, PT, RO, 
SE, SK 

14: AT, BG, CY, CZ, EL, 
ES, FI, HR, LT, LV, PT, 
RO, SE, SK 

BE: standard 6 months’ salary or the 
amount of the damage suffered 

SI: €500-5,000, depending on 
duration and seriousness of 
discrimination  

Source: ICF (2019), Country fiches   

Most national experts involved in the evaluation regard compensation or reparation of victims 
as an important (12) or moderate issue (10). If compensation amounts are too low, they are not 
sufficiently dissuasive for defendants; in addition, especially when compared to litigation costs, 
they  discourage  victims  from  taking  judicial  action  against  gender  pay  discrimination.  While 
the issue of dissuasiveness may be offset by criminal sanctions (See 6) in certain countries (BE, 
CY,  FI,  LT,  MT),  legal  experts  note  that  civil  compensation  remains  an  important  avenue  of 
redress  and  dissuasiveness.  In  Belgium,  victims prefer  civil  redress  because  the  threshold  for 
evidence is easier to reach than in criminal proceedings. In Cyprus, it is reported that the courts 
prefer to award civil compensation to address pay discrimination, shying away from imposing 
fines. 

Table 6. Types of penalties 

Administrative 
fines 

Criminal 
fines 

BG, CZ, EE*, EL, 
ES, FI, FR, HU, IT, 
LT, LU, LV, RO, SI, 
SK 

BE, CY, FI, 
LT, MT 

Imprisonment 

Other 

BE, CY, FI, LT, MT  ES: automatic loss of aid, subsidies and benefits derived 

from the application of employment programmes 

HU: order the publication of its decision on its own 
website and that of the violator’s 

IE: carry out a full equality audit along with the 
implementation of equality procedures within a certain 
period and publication of the decision 

IT: the removal of an advantage from the discriminator 
such as subsidies or other public benefits 

24 

 
 
RO: publication of the summary of the decision or 
judgment in the media 

UK: the tribunal is required to order the employer to carry 
out an equal pay audit  

Source: ICF country fiches (2019)  
* Administrative fines can be imposed in Estonia, but in practice the labour inspectorate cannot enforce them due to limited resources. 

Burden of proof (Article 19) 

It is generally very difficult for victims of discrimination, including pay discrimination, to meet 
the necessary legal standards to prove the existence and extent of the discrimination. The EU 
addressed this matter already back in 1997, in a directive specifically intended to alleviate the 
burden of proof in cases of discrimination based on sex91. That directive was part of the recast 
exercise which resulted in the current Directive. 

Under the Directive, Member States must ensure that, when a claimant establishes ‘facts from 
which  it  may  be  presumed  that  there  has  been  direct  or  indirect  discrimination’,  it  is  for  the 
employer to prove that there has been no breach of the principle of equal pay (Article 19).  

While the reversal of the burden of proof and protection from victimisation can be considered 
to confer improved access to justice, these provisions depend heavily on their implementation 
in practice at national level. This includes how victims can establish the facts to qualify for the 
presumption of pay discrimination necessary to trigger the shared burden of proof. The burden 
of proof, in practice, continues to fall heavily on victims (see below).  

Pay  transparency  measures  have  the  potential  to  support  the  implementation  of  the  reversed 
burden of proof. This can assist female workers in determining the average pay for women and 
men. The Directive does not provide for binding pay transparency measures (such as the right 
to  request  pay  information)  that  could  facilitate  the  establishment  of  presumed  pay 
discrimination. EU action provides for such provision in the form of soft law, as laid down in 
the  Pay  Transparency  Recommendation.  In  Danfoss92,  the  Court  of  Justice  already  held  that 
where  an  employer’s  pay  system  lacks  transparency,  the  employer  is  responsible  for  proving 
that  the  system  is  not  discriminatory.  This  enables  workers  to  provide  evidence  from  which 
discrimination can be presumed, thus triggering the reversed burden of proof.  

The  provision  on  burden  of  proof  has  been  transposed  in  all  Member  States’  national 
legislation, although the specific formulation varies among Member States: 

 

  19 Member States (BE, BG, CY, EE, EL, ES, FI, IE, IT, LU, LV, MT, NL, PL, RO, SE, 
SI, SK, UK) require victims to establish prima facie discrimination in order to trigger 
the mechanism regarding the burden of proof.  
In  Austria,  the  claimant  must  make  pay  discrimination  based  on  sex  ‘credible’  before 
the  courts.  Depending  on  the  judge’s  knowledge  of  the  legislation  and  pay 
discrimination, this task may be more or less challenging.  
In  DK,  EE  and  HU  also,  once  the  employee  presents  credible  arguments/facts,  the 
employer must prove the lack of discrimination. These Member States refer explicitly to 
the concept of a ‘shared’ or ‘divided’ burden of proof. 

 

91 Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. 
92  Case  C-109/88,  Judgment  of  the  Court  of  17 October  1989,  Handels-  og  Kontorfunktionærernes  Forbund  I  Danmark  v  Dansk 
Arbejdsgiverforening, acting on behalf of Danfoss, ECR 1989-03199. See also Case C-262/88, Douglas Harvey Barber v Guardian Royal 
Exchange Assurance Group, [1990] ECR I-1889 (Barber), paragraphs 33-34. 

25 

 
 
 
                                                           
 

 

 
 

 

In France, employees must present evidence ‘that leads to believe that direct or indirect 
discrimination has taken place’.  
In  Croatia,  on  the  other  hand,  the  claimant  must  present  facts  which  ‘justify  the 
suspicion that discriminatory treatment has occurred.  
In Lithuania, the victim must ‘indicate the fact of discrimination’.  
In  Germany,  victims  need  to  supply  circumstantial  evidence  that  can  prove  the 
likelihood  or  lead  to  the  assumption  that  a  discriminatory  act/fact  exists,  but  it  is  not 
clear exactly what type of proof should be delivered.  
In Portugal, the claimant must indicate the worker(s) in relation to whom they feel they 
have been discriminated, and the employer must prove that the difference in treatment is 
not based on discrimination. 

Experts  from  Member  States  highlight  that  in  general  it  is  not  clear  what  standard  should  be 
met to establish the required presumption of discrimination that would tilt the burden of proof 
towards the employer, in favour of the victim. The concept used in the Directive, transposed in 
national  law  as  requiring  a  ‘probability/credibility/likelihood’  of  discrimination,  may  not 
correspond  to  standards  of  evidence  applicable  under  national  procedural  law,  making  it 
difficult for courts to apply it in a consistent and transparent manner. For example, in Belgium, 
the Gender Equality Act provides for a presumption of discrimination and the defendant must 
prove that there has been no discrimination. It further details which elements can contribute to a 
presumed discrimination, such as the recurrence of the discrimination, or the victim being in a 
comparable  situation  to  the  reference  person,  as  well  as  statistics  in  cases  of  indirect 
discrimination. In Portugal, the presumption of pay discrimination is established in cases where 
the worker claims to be discriminated against and the employer does not present a transparent 
remuneration  policy  that  demonstrates  that  the  alleged  differences  are  based  on  objective 
criteria. 

Experts from Belgium, Greece, Italy, the Netherlands and the UK report that data or statistics 
can be used as evidence in court. The use of data and statistics can facilitate the establishment 
of discrimination, in particular in cases of indirect discrimination or in cases where reference is 
made  to  a  hypothetical  comparator.  However,  there  is  a  lack  of  clarity  on  whether  or  not 
statistical  data  to  establish  pay  discrimination  can  be  used  in  the  courts  across  the  EU. 
Moreover, even if such data and statistics are accepted as evidence, such data and statistics may 
not exist and, even if they do exist, workers usually do not have easy access to them. Workers 
usually also have no access to experts or technical studies on the equality and value of the work 
concerned that would make comparisons across the board. The support and expertise of NGOs, 
trade unions and equality bodies in litigation in these cases can be crucial. 

One  way  to  establish  the  presumption  of  discrimination  is  by  identifying  a  comparator. 
However,  as  mentioned  above,  this  may  be  very  challenging.  Issues  with  providing  evidence 
about  a  comparator  have  been  reported  in  14  Member  States  (BE,  CY,  CZ,  DK,  EE,  EL,  FI, 
HR, IE, LT, LU, NL, SI, UK). 

In Member States  where pay discrimination  is  a  criminal  offence  (BE, CY, FI,  LT, MT), the 
difficulty in gathering the evidence necessary to establish a prima facie case of discrimination 
may be mitigated by the fact that the public prosecutor has the power to investigate and gather 
elements to establish a discrimination case before the criminal courts. Evidence gathered in this 
way  may  usually  be  used  by  the  victim  in  subsequent/parallel  civil  proceedings.  However, 
according  to  stakeholders  interviewed  by  national  experts,  criminal  investigations  are  rare  in 
cases of alleged pay discrimination, probably because the scarce public resources to investigate 

26 

 
 
 
criminal offences can only be made available when there are sufficient elements pointing to a 
criminal offence in the first place, thus creating a vicious circle of lack of evidence. 

Overall,  experts  identify  applying  the  rule  on  the  burden  of  proof  as  the  most  problematic 
provision relating to access to justice: experts from 11 Member States assess it as ‘important’, 
while experts from another 16 Member States assess it as ‘moderate’. 

Protection against dismissal or other adverse treatment (Article 24) 

The Directive requires Member States to ensure that measures are in place to protect employees 
against  dismissal  or  other  adverse  treatment  by  their  employer  as  a  reaction  to  a  complaint 
within  the  undertaking  or  to  any  legal  proceedings  related  to  pay  discrimination.  National 
experts involved in the evaluation have not detected any issues regarding the application of this 
legal provision.  

Member  States  have  all  established  a  prohibition  on  dismissal  and  adverse  treatment  for 
workers  who  file  a  complaint  or  action  before  the  courts  on  equal  pay.  National  legislation 
provides for sanctions in the form of fines (CY, LT, LV, RO, SI), compensation (AT, BE, DK, 
EE, EL, FI, IE, LV, MT, NL, SE, UK) or the requirement to reinstate the worker or consider 
void  the dismissal  or adverse decision (BE,  ES,  FR,  IE,  LU, MT, NL, PL, PT, SK).  In some 
Member  States,  the  victim  can  only  claim  this  protection  before  the  courts  in  different 
proceedings  from  the  ongoing  pay  discrimination  proceedings;  in  practice  this  makes  the 
protection  far  from  effective  because  in  order  to  be  protected  victims  must  file  a  separate, 
additional  claim  before  a  court  (BG,  CZ,  DE,  HR,  HU,  IT).  This  requires  an  additional 
investment of time and costs, which acts as a deterrent for victims to claim their rights. 

The  study  and  the  consultations  show  that  fear  of  dismissal  or  adverse  treatment  remains  a 
significant barrier to seeking redress93. 76% of public consultation respondents94 rate this matter 
as  ‘rather  important’  or  ‘very  important’  (see  Annex  2).  The  relevance  of  the  issue  was 
confirmed by the legal experts pointing to adverse treatment such as harassment or barriers to 
career advancement being difficult to prove in court.  

Other barriers to access to justice 

Further barriers to access to justice mentioned by legal experts and stakeholders include:  

  costs  of  proceedings,  with  legal  aid  only  available  to  (very)  low  income  earners:  in 
some countries (e.g. AT, BG95, SE) the losing party also bears the costs of the winning 
party, making the stakes of pursuing litigation very high; 
lack of courts’ expertise on the legal framework for gender pay discrimination96; 
low  social  awareness  among  victims  of  pay  discrimination  and  lack  of  pay 
transparency97; 
length and complexity of the proceedings linked to difficulties in proving discrimination 
and in finding the required comparator. 

 
 

 

93 ICF Country Fiches (2019) and Questionnaires of the Network of Legal Experts on Gender Equality and Non-discrimination supporting the 
following  Study:  Foubert  P.,  The  enforcement  of  the  principle  of  equal  pay  for  equal  work  or  work  of  equal  value  A  legal  analysis  of  the 
situation in the EU Member States, Iceland, Liechtenstein and Norway, ELLN for the European Commission, 2017. 
94  Annex  2  provides  a  more  refined  analysis  of  the  replies  to  the  public  consultation.  The  latter  by  their  own  nature  are  however  not 
representative of the general population or subcategories of respondents. 
95 In Bulgaria, general courts and the equality body procedures are exempt from costs, both state fees and expenses. However, administrative 
case-law  does  not  respect  this,  and  parties  are  ordered  to  pay  each  other’s  costs  if  the  case  was  lost,  as  well  as  court  fees.  In  addition,  the 
equality body (CPfD) demands that it be awarded costs when complainants appeal its decisions before the court. 
96 AT, BE, BG, CY, CZ, DE, EE, EL, ES, HR, IT. 
97 For example, CY, PL, ES. 

27 

 
 
 
                                                           
Conclusion on the effectiveness of EU action in ensuring access to justice for victims of pay 
discrimination 

The  legal  protection  provided  for  in  Articles  17  through  19  and  24  of  the  Directive  is 
considered very important in ensuring proper enforcement of the equal pay principle. However, 
in practice, it seems that those seeking redress in cases of alleged pay discrimination continue 
to  face  substantial  barriers.  Around  60%  of  respondents  in  the  public  consultation  (Annex  2) 
rate all factors listed in Table 2 of the Annex 2 as ‘rather important’ or ‘very important’. The 
most relevant issues mentioned are the fear of professional consequences (76%), the length and 
costs of litigation (81%), and the problems relating to the burden of proof. 

The  literature  review  confirms  that  very  few  claims  of  gender  pay  discrimination  reach  the 
national  courts98.  This  is  also  reflected  in  the  legal  research  carried  out  in  the  support  study, 
which identified only a few national cases in Cyprus, Finland, Germany, Greece, Malta and the 
UK.  The  research  also  points  to  a  lack  of  expertise  on  EU  anti-discrimination  law,  including 
issues of equal pay, among judicial authorities at national and regional level.  

In  a  European  Trade  Union  Confederation  (ETUC)  survey  carried  out  in  2019,  most 
confederations  (20  out  of  38)  reported  that  no  information  on  the  number  of  cases  was 
available, and 10 reported that they did not know or did not consider the issue to be relevant. 
Only  eight  confederations confirmed the  existence of statistics, but  considered the number of 
cases ‘very low’ or ‘somewhat low’ compared to the scale of the issue99.  

5.1.3. Effectiveness of action in terms of monitoring and enforcement 

Effective, proportionate and dissuasive penalties (Article 25) 

Under  the  Directive,  Member  States  must  lay  down  penalties  for  infringements  of  national 
provisions adopted pursuant to the Directive and should take measures necessary to ensure that 
they are applied. The Directive allows for penalties to comprise the payment of compensation 
to the victim. In any case, penalties must be effective, proportionate and dissuasive.  

Nine Member States (AT, DE, DK, EE100, HR, NL, PL, PT, SE) limit penalties to compensation 
awarded by courts. In these Member States, the burden of enforcing the principle of equal pay 
therefore rests on victims who need to take action before the courts. Considering the barriers to 
access to justice mentioned above, it is doubtful that compensation awards alone qualify as an 
effective  form  of  penalty,  especially  since  compensation  and  penalties  are  regulated  by  two 
separate  articles  of  the  Directives  (Article 18  and  25  respectively).  It  is  equally  doubtful  that 
compensation  awards  qualify  as  dissuasive  penalties,  considering  the  reported  generally  low 
level of compensation awarded by courts.  

19  other  Member  States  have  established  specific  penalties  in  addition  to  compensation.  The 
most common penalties are of an administrative nature (BG, CZ, EL, ES, FI, FR, HU, IT, LT, 
LU,  LV,  RO,  SI,  SK,  EE)  and  are  usually  ordered  by  the  national  labour  inspectorate  or 
equality  body.  Other  measures  are  of  a  criminal  nature  (BE,  CY,  FI,  LT,  MT):  they  include 
fines  or  even  imprisonment101.  Other  penalties  include  the  publication  of  the  decision 

98 Commission’s European Experts Legal Network,  The enforcement of the principle of equal pay for equal work or work of equal value, A 
legal  analysis  of  the  situation  in  the  EU  Member  States,  Iceland,  Liechtenstein  and  Norway,  for  the  European  Commission.  See  also  an 
overview  of  national  case  in  the  Network’s  2019  report:  https://www.equalitylaw.eu/downloads/5002-national-cases-and-good-practices-on-
equal-pay. 
99 European Trade Union Institute, ETUC Annual Gender Equality Survey, 2019. 
100 An expert reported that the possibility to impose administrative fine exists in Estonia, but is not applied in practice by the labour inspectorate 
due to limited resource to enforce equal pay provisions. 
101 Imprisonment can be up to 6 months (CY, FI, MT), 1 year (BE) or 3 years (LT). 

28 

 
 
                                                           
concerning  the  pay  discrimination  (HU,  IE,  RO),  the  loss  of  subsidies  by  the  defendant 
company/employer (ES, IT) and pay audits (IE, UK102).  

Criminal penalties may appear more dissuasive and effective than administrative ones, but they 
require  potentially  lengthier  criminal  proceedings.  In  Belgium,  the  equality  body,  Unia, 
actually  suggested  that  it  would  be  better  to  reintroduce  administrative  fines.  This  happened, 
for  instance,  in  Italy,  where  criminal  penalties  were  replaced  by  administrative  penalties  in 
2016, with higher efficiency in the sanctioning procedure.  

Penalties  are  generally  applied  through  administrative  means  (labour  inspectorates),  quasi-
judicial means (equality bodies) or judicial means (courts). 

Labour inspectorates and equality bodies 

In most Member States (BE, CZ, CY, EE, EL, FR, LU, ES, LT, LV, MT, PL, RO, SI, SK, PT), 
the  labour  inspectorates  have  a  formal  role  in  enforcing  equal  pay  provisions.  Gender-based 
pay  discrimination  is,  however,  not  their  core  business,  and  labour  inspectors  are  not 
necessarily trained to identify such discrimination in the first place103. Several experts (BE, CZ, 
EL,  HU)  pointed  out  that  labour  inspectors  only  investigate  following  a  complaint  from 
workers or a warning from the national equality body.  

Country  experts  from  SI,  LU  and  FR  also  reported  that  the  principal  barrier  to  efficient 
enforcement  of  the  equal  pay  principle  by  labour  inspectors  stems  from  the  lack  of  human 
resources.  

As for equality bodies, all Member States have established at least one. Their core purpose is to 
implement equal treatment legislation generally. Article 20 of the Directive mandates them to 
provide  assistance  to  victims  of  discrimination  in  pursuing  their  complaints,  to  conduct 
independent surveys and to publish independent reports that make recommendations on issues 
relating  to  discrimination.  The  freedom  the  Directive  gives  to  Member  States  to  decide  on 
equality bodies’ mandate and level of responsibilities has led to a wide diversity in the bodies’ 
competences and powers, financial support and structure. 

In many Member States, equality bodies assist alleged victims in bringing their claims before 
the courts (BE, BG, DE, ES, FI, HR, IE, IT, MT, PT, SI, SK, UK) or may bring claims on their 
behalf (BE,  IE,  IT,  LV,  PL, SE, SI, SK). Certain Member States entrust equality bodies with 
quasi-judicial competences. In these cases, the equality body can grant compensation to victims 
directly (DK), sanction perpetrators through administrative and/or criminal sanctions (BG, HU, 
RO), or resolve discrimination disputes by taking binding decisions (CY, EE, FI).  

Most  national  equality  bodies  have  also  a  non-judicial  enforcement  role104.  Non-judicial 
activities  include  the  competence  to  engage  in  alternative  dispute  resolution105  (‘out-of-court 
procedures’ such as mediation) and to provide legal non-binding opinions/recommendations106. 
In addition, equality bodies’ mandates include other types of assistance to victims, as well as 
the promotion and support of gender equality rights.  

102 In Ireland, companies can be required to carry out a full equality audit along with the implementation of equality procedures within a certain 
period and the publication of the decision; in the UK, the tribunal is required to order the employer to carry out an equal pay audit. 
103 Some experts stressed other effective types of enforcement mechanisms. For instance, in Belgium, one trained staff member responsible for 
discrimination  is  allocated  per  regional  district  (there  are  24  in  total).  In  practice,  however,  they  have  very  few  cases,  so  they  cannot  be 
considered professionals in discrimination cases. 
104 BE, BG, CY, DK, EE, FR, FI, HR, HU, IE, LT, LV, MT, NL, PT, SE, SI, SK, UK. 
105 This is the case in 12 Member States, namely BG, EE, FR, HR, HU, IT, LV, MT, NL, PT, RO, SE. 
106 European Network of Legal Experts, The enforcement of the principle of equal pay for equal work, 2018. 

29 

 
 
                                                           
The number of complaints or cases on equal pay brought before equality bodies varies across 
the EU and tends to be low (Austria has the highest number of such cases, ranging from 58 to 
110 per year). Reasons mentioned for the low number of cases are the fact that victims lack of 
awareness  of  the  equality  body’s  competences  or  even  of  its  existence  (LU,  DE,  EE)  and  a 
more general lack of awareness of the rights relating to equal pay (BE).  

To  ensure  the  independence  and  effectiveness  of  national  equality  bodies,  the  European 
Commission adopted a recommendation on standards for equality bodies in June 2018107. This 
legal  act  sets  minimum  standards  concerning  the  mandate  of  equality  bodies,  their 
independence,  their  effectiveness  (including  sufficient  resources  and  appropriate  powers)  and 
the national institutional architecture for equality. 

5.1.4. Effectiveness of action to tackle occupational segregation  

Gender-neutral job  evaluation  and  classification systems help  tackle occupational  segregation 
by  elucidating  the  true  value  of  different  jobs,  skills,  experiences  and  responsibilities.  They 
detect  indirect  pay  discrimination  related  to  the  undervaluation  of  jobs  (typically  done  by 
women) by measuring and comparing jobs whose content is different but of equal value. In this 
way, they support a transparent pay system and enhance clarity on what is considered work of 
equal value, thus contributing to reducing the gender pay gap.  

Article 4 of the Directive provides that when job classification systems are used to determine 
pay,  they  must  be  based  on  the  same  criteria  for  men  and  women  and  must  be  drawn  up  to 
exclude  any  discrimination  on  the  grounds  of  sex.  The  Pay  Transparency  Recommendation 
tries to reinforce and extend this provision by inviting Member States to promote and develop 
such  systems,  including  in  their  capacity  as  employers  in  the  public  sector,  to  prevent  or 
identify  and  tackle  possible  pay  discrimination  based  on  gender-biased  pay  scales.  Member 
States are specifically invited to encourage employers and social partners to introduce gender-
neutral  job  evaluation  and  classification  systems.  In  doing  so,  Member  States  could  draw 
inspiration from Annex 1 to the Commission staff working document accompanying the report 
on the application of Directive 2006/54/EC108. 

The Recommendation introduced the additional term ‘job evaluation systems’ as a new concept 
in  the  EU  legal  framework,  besides  job  classification  systems.  The  concept  of  job  evaluation 
systems  is  a  broader  term109  and  considered  more  effective110.  Both  job  evaluation  and  job 
classification systems must be ‘gender neutral’.  

Since 2006, 14 Member States (BE, CY, DE, EL, ES, FR, IT, LT, MT, PT, SE, SI, SK, UK) 
have  introduced  the  obligation  that  job  classification  or  evaluation  systems  must  be  gender 
neutral. Overall, the use of job evaluations and classifications as part of wage determination is 
generally  limited  in  the  private  sector.  The  network  of  legal  experts  in  the  EU111  reports  the 
common  use  of  job  evaluation  or  classification  systems  in  only  8  countries  (FI,  FR,  DE,  IT, 
NL,  LU,  BE,  UK).  National  experts  involved  in  the  evaluation  underline  that  these  schemes 

107  https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/tackling-discrimination/network-experts-field-
anti-discrimination_en. 
108 SWD(2013) 512 final. 
109 Job classification is one of the possible job evaluation systems. Jobs are classified by assigning the various functions in a company or sector 
to existing categories and structures. Since there is in principle no detailed analysis of the job content, this approach risks the possible influence 
of gender prejudices and stereotypes and might result in predominantly female jobs being undervalued. Job evaluation systems  can go further 
in ranking functions based on a range of factors such as skill, effort, level of responsibility and working conditions. 
110 Barnard, C., EU Employment Law – Fourth Edition, Oxford University Press, 2012. 
111 European Network of Legal Experts in Gender Equality and Non-discrimination, Report on pay transparency in the EU: A legal analysis of 
the situation in the EU Member States, Iceland, Liechtenstein and Norway, 2016. Accessible at: https://publications.europa.eu/en/publication-
detail/-/publication/329c3e47-2bd8-11e7-9412-01aa75ed71a1/language-en. 

30 

 
 
                                                           
seem more common in larger companies, or in companies under collective agreements (CZ and 
LU). 

Promotion of job classification by social partners and employers 

Some Member States (BE, FR, LU) have included an obligation for social partners to negotiate 
on  equal  pay,  including  the  requirement  to  establish  job  classification/evaluation  systems. 
However,  this  obligation  is  not  always  applied  in  practice.  In  Luxembourg,  for  instance, 
collective agreements simply mention that equal pay has been discussed112. The main obstacle 
to  effective  negotiation  of  job  classification  systems  by  social  partners  lies  in  the  absence  of 
monitoring by the authorities. 

A  good  example  of  negotiation  by  social  partners  is  the  adoption  in  Belgium  of  Collective 
Agreement  No 25113,  as  amended  most  recently  in  2008,  which  provides  that  enterprises  and 
joint sector committees must assess whether their job evaluation systems and pay classification 
schemes  are  gender  neutral  and  amend  them  when  necessary.  The  agreement  required  all 
companies  and  sectors  to  assess  and  ensure  the  gender  neutrality  of  job  classification  and 
evaluation systems. The collective agreement defines the notion of pay and establishes a special 
committee competent to advise courts on equal pay.  

To  ensure  proper  implementation,  the  legislation  established  a  close  monitoring  system.  The 
Joint  Committee  in  charge  of  concluding  the  agreement  must  have  ensured  the  gender 
neutrality  of  the  evaluation  and  classification  system  before  the  mandatory  submission  of 
collective agreement to the Ministry of Employment. The ministry rates the monitoring system 
using a 12-point screening tool and can suggest changes or deny approval if the function title is 
not neutral e.g. if it is expressed with the feminine or masculine form. This was the case for 45 
out of 255 job classifications. After resubmission in the 2 years allowed, 12 were still found to 
be non-gender neutral and are being renegotiated. The initiative as a whole was very successful 
in  bringing  awareness  of  stereotypes  in  job  classifications,  which  eventually  helped  to  have 
more  analytical  classifications  and  increased  the  status  and  value  of  sectors  in  which  a  high 
proportion of workers are women. In 2010, the Institute for the Equality of Women and Men 
(part of the national  government) developed and  published a checklist  to  help  design  gender-
neutral  job  evaluation  and  classification  systems.  Despite  this  comprehensive  framework,  the 
study  shows  that  the  implementation  of  the  obligation  varies  substantially  from  one  sector  to 
the other. 

Training  programmes  to  assist  employers  in  implementing  gender-neutral  job  evaluation  and 
classification  systems  are  reported  to  exist  in  some  Member  States  (BE,  CY,  EE,  LU,  SE). 
Other Member States (AT, BG, BE, EE, FR, NL, PT, SE, LU and UK) have drawn up guides 
and checklists for job evaluation and classification that make it possible to avoid gender bias. 
For  instance,  in  France,  the  equality  body  (le  Défenseur  des  droits)  published  a  guide  on 
gender-neutral  job  classification  in  2013  to  promote  effective  implementation  in  collective 
bargaining  procedures  at  sector  and  company  levels114.  The  Higher  Council  for  Employment 
Equality  and  social  partners  then  developed  a  guide  listing  the  parameters  that  ensure  job 
classifications  are  gender  neutral115.  The  guide  is  now  the  point  of  reference  for  collective 

112 Luxembourg ICF Country Fiche (2019). 
113  Convention  Collective  de  travail  numéro  25  du  15  octobre  1975  sur  l’égalité  des  rémunérations  entre  les  travailleurs  masculins  et  les 
travailleurs féminins, modifiée par les conventions collectives de travail numéro 25 BIS du 19 décembre 2001 et numéro 25 TER du 9 juillet 
2008. Accessible at: http://www.cnt-nar.be/CCT-COORD/cct-025.pdf 
114 Guide pour une évaluation non discriminante des emplois à prédominance féminine (Défenseur des droits, 2013a). 
115 B. Grésy, M. Becker ‘Guide pour la prise en compte de l’égalité entre les femmes et les hommes dans les systèmes de classification’, 2017. 
Accessible 
https://www.egalite-femmes-hommes.gouv.fr/guide-du-conseil-superieur-de-legalite-professionnelle-csep-pour-la-prise-en-
compte-de-legalite-entre-les-femmes-et-les-hommes-dans-les-systemes-de-classification/ (Accessed 20 May 2019). 

at: 

31 

 
 
                                                           
bargaining procedures at the sectoral and company levels, and trade unions have referenced it 
in publications about reducing the gender pay gap116.  

National  experts  report  a  lack  of  promotion  and  monitoring  of  gender-neutral  job 
evaluation/classification systems in a number of Member States (AT, BG, CZ, DK, EE, EL, IT, 
MT, LT, LV). In some Member States (AT, BG, DK, LT and LV), experts have not found any 
evidence  that  private  sector  employers  currently  use  a  gender-neutral  job  evaluation  or 
classification  system.  Even  where  systems  exist,  they  are  often  based  on  traditional,  non-
transparent criteria, resulting in the under-classification of predominantly female categories and 
making indirect discrimination very probable (this is the case in countries such as EL and HR).  

The  national  research  identified  several  reasons  underlying  the  challenges  faced  in 
implementing  gender-neutral  job  classification/evaluation  systems.  For  example,  trade  union 
delegates do not  always  have the knowledge and expertise to  negotiate on gender-neutral  job 
classification systems (this was identified as an issue in France and Bulgaria in  particular). In 
some countries, there is a lack of awareness of the systems’ purpose and added value117. A way 
to tackle this issue is through training (BE, EE, CY, LU and SE) and guidance. Even in cases 
where  gender-neutral  job  classification  systems  must  be  negotiated  by  social  partners,  the 
absence  of  monitoring  affects  the  systems’  implementation,  as  was  noted  particularly  for 
Luxembourg.  In  Estonia,  the  development  of  gender-neutral  job  classification/evaluation 
systems  is  not  on  a  priority  for  trade  unions.  In  several  Member  States,  a  review  of  existing 
systems is needed to remove traditional, non-transparent criteria which are not gender neutral 
and thus reinforce segregation and inequality in pay. 

5.1.5. Effectiveness of the Pay Transparency Recommendation  

The  lack  of  pay  transparency  contributes  to  scarce  awareness  of  actual  and  existing  pay 
discrimination and represents an obstacle for victims to claim equal pay. As outlined in Section 
2.1,  the  2014  Recommendation  proposed  four  main  measures  for  employees,  employers  and 
public authorities to uncover unjustified wage inequalities within organisations.  

The pay reporting and pay audit measures proposed in the Recommendation depend on the size 
of  the  company:  over  50  employees  for  pay  reporting  and  over  250  for  pay  audits.  The 
threshold  is  important  because  a  lower  employee  threshold  leads  to  greater  coverage  of  the 
workforce118 and, consequently, more potential to identify opportunities to eliminate gender pay 
discrimination. For example, the threshold of 250 employees in the UK implies that less than 
half  of  UK  workers  are  covered  by  the  legislation119.  The  employee  threshold  applied  varies 
across  the  13  Member  States120  that  had  pay  reporting  or  pay  audit  measures  in  place  by 
December 2018, ranging from less than 50 (DK, FI, LT, PT, SE) to 250 and more (UK, DE). 
As mentioned, there was limited follow-up by Member States  (See Table 2) to the four main 
measures that are the focus of this evaluation in addition to the Directive.  

Enforcement mechanisms and compliance of pay transparency measures in Member States  

Strong  enforcement  mechanisms  should  lead  to  higher  levels  of  compliance  and  more 
widespread  application  of  the  legislation.  In  11  Member  States  (AT,  BE,  DK,  DE121,  ES,  FI, 
FR,  IT,  PT,  SE,  UK),  pay  transparency  measures  are  mandatory.  Enforcement  mechanism 

116 Binet, 2017; Union des employeurs de l’économie sociale et solidaire (UDES), 2016. 
117 HR, MT and FR. 
118 Women and Equalities Committee [WEC] (2016), Gender pay gap, Commons select committee inquiry. 
119 United Kingdom, Government Equalities Office (2016), Closing the gender pay gap: Government response to the consultation. 
120 AT, BE, DK, DE, ES, IT, FI, FR, LT, LU, PT, SE, UK. 
121  In  Germany,  employers  with  at  least  500  employees  and  bound  by  collective  agreements  are  obliged  to  carry  out  pay  reporting.  The 
legislation encourages, but does not mandate, pay audits. 

32 

 
 
                                                           
and/or  sanctions  in  place  are  fines  (BE,  DK,  FI,  FR,  IT,  LT,  PT,  SE  and  UK)  and  a  ban  on 
public benefits (PT, IT). 

Information  about  the  actual  level  of  enforcement  is,  however,  scarce.  In  Sweden,  three 
employers were fined for non-compliance with  the pay audit requirements,  with  the penalties 
ranging from €9,400 to €188,000122.  In the UK, the Gender Pay Gap Information Regulations 
mention a fine for companies not complying with the legislation, but do not provide a figure123.  

The  level  of  compliance  also  varies  substantially.  It  appears  to  be  higher  in  Sweden,  the  UK 
and Finland. For the UK, almost all firms to which the regulations apply (i.e. those with more 
than  250  employees)  comply  with  the  legislation124.  In  Sweden,  the  compliance  rate  has 
increased over time and reached high levels in recent  years. In 2008, only 48% of employers 
complied with the legislation125. By 2016, an estimated 7 out of 10 companies applied the pay 
transparency regulation126 and about a quarter of employers did not comply with the pay audit 
measure127.  In  Finland,  an  estimated  60%  of  companies  complied  with  the  measure  in  2008-
2009, increasing to 50-66%128. 

In other Member States, compliance with pay transparency measures is quite low. In Germany, 
low compliance seems  to be related to  low  awareness  of the legislation  among  employers. A 
survey of 2,300 German companies revealed that 74% of companies with 500 employees were 
not  aware  of  the  existence  of  the  Pay  Transparency  Act  and  only  a  minority  of  companies 
(12%)  are  reviewing  their  pay  structures  to  make  them  more  transparent.  Another  survey  of 
companies  reports  that  16%  of  employers  had  employees  asking  for  pay  information129.  In 
France, figures for 2019 show that only 50% of employers legally bound to pay transparency 
measures  had  actually  published  their  gender  equality  index  on  time130.  Belgium  does  not 
appear  to  have  a  record  of  the  number  of  companies  that  actually  submit  pay  reports131.  In 
Austria,  the  level  of  compliance  in  preparing  income  reports  was  higher  among  larger 
companies. It was also found to increase over time132.  

Disclosure of pay reports and pay audits 

The  Recommendation  suggests  that  employers  should  regularly  inform  employees,  workers’ 
representatives and social partners of pay reports. In addition, the results of pay audits should 
be made available to workers’ representatives and social partners upon request.  

122 The Equality Ombudsman (DO),  Sakligt motiverad eller koppling till kön? En analys av arbetsgivares arbete med att motverka osakliga 
löneskillnader mellan kvinnor och män’, No 2016:1, prepared by J. Kumlin, Stockholm, 2016. The estimated fines were converted from SEK 
(SEK  100,000-2,000,000).  The  government  launched  a  governmental  inquiry  in  2018  to  determine  if  increased  sanctions  were  needed  to 
achieve greater compliance with the legislation. The report is due October 2020. 
123 United Kingdom, Government Equalities Office (2018b), Gender pay gap information regulations: Summary of reported data for 2017/18. 
124  Dromey  J.  and  Rankin  L.,  The  fair  pay  report:  How  pay  transparency  can  help  tackle  inequalities,  IPPR,  2018,  Available  at:  
http://www.ippr.org/research/publications/the-fair-pay-report. 
125 Nyberg, A. (2019), ‘Including Equal pay in Collective Bargaining: Experience in Sweden’, Presentation at the SAAGE Thematic Seminar, 
Brussels May 2019. 
126 Eurofound (2018), Pay transparency in Europe: First experiences with gender pay reports and audits in four Member States, Publications 
Office of the European Union, Luxembourg. 
127 Unionen, Lönekartläggning lönar sig, Stockholm, 2016. 
128 Eurofound, Pay transparency in Europe: First experiences with gender pay reports and audits in four Member States, Publications Office of 
the European Union, Luxembourg, 2018. 
129 Scheele, A. (2019), ‘The Pay Transparency Act in Germany: Idea and Outcomes’, Presentation at the SAAGE Thematic Seminar, Brussels 
May  2019.  Considering  these  figures,  the  efficiency  section  made  the  assumption  that  20%  of  companies  comply  with  the  legislation  in 
Germany. 
130 Eydoux, A., ‘The French Gender Equality Index’, Presentation at the SAAGE Thematic Seminar, Brussels May 2019. 
131 For the illustrative calculations in the efficiency section, 50% compliance was assumed in Belgium. However, as explained above, the true 
compliance rate is unknown. 
132 The Ministry for Women in Austria commissioned an evaluation in 2015 – see country fiche. 

33 

 
 
                                                           
The results of the first empirical study133 on the impact of mandatory wage transparency suggest 
that  disclosing  gender  disparities  in  pay  can  have  some  effect  in  narrowing  the  gender  wage 
gap at company level. Moreover, disclosure seems to have a positive impact on the number of 
women  hired  and  their  career  progression.  At  the  same  time,  the  overall  wage  cost  for 
companies has not increased as the growth of men’s wages slowed down. The study analysed 
companies’ wage statistics before and after the introduction of the 2006 Act on gender-specific 
pay  statistics  in  Denmark.  It  compared  companies  with  35-50  employees  (who  had  to  report 
their wage gaps) to data of a group of similar-sized firms with 25-34 employees. It appears that 
from 2003 to 2008, the gender pay gap in the first group of companies declined by 7% relative 
to the pre-treatment mean, from 18.9% to 17.5% against a steady 18.9% in the other group. A 
7% reduction in the pay-gap should be considered as a significant effect. Only a limited number 
of  firms  in  Denmark  are  governed  by  this  legislation  and  the  study  also  proves  the  effect 
amongst firms, that were not required to provide gender segregated pay-statistics. 

These findings suggest that the obligation to provide information on the gender pay gap can be 
an effective step towards addressing gender wage disparities. The salary growth for men in the 
companies bound by the obligation increased less than in the companies not required to report 
the  data  and  the  overall  wage  bill  at  the  end  of  the  observation  period  was  therefore  2.8% 
lower. These lower wage costs for companies might compensate for the potential loss related to 
an observed decline in productivity of 2.5%, suggesting overall that fears from companies on 
the costs of these measures are not justified (see also Section 5.3).  

It is not possible to generalise these results, which are specific to Danish experience. However, 
since Denmark already had a strong record of supporting women in the workforce, it is possible 
that a mandatory wage transparency reform would have a even larger effect on the gender wage 
gap in less egalitarian countries.  

In practice, the disclosure of pay reports and pay audits varies by Member State134. In Austria, 
an  estimated  one  third  of  works  councils  were  reported  to  have  held  company  meetings, 
typically at their own request. However, awareness of pay reports among employees was still 
low.  In  Denmark,  less  than  half  of  employee  representatives  (42%)  reported  receiving  pay 
reports from companies. In Finland, an estimated 35-40% of employees reported that the pay 
audit  results  were  available  online135.  In  Belgium,  pay  reports  from  employers  are  only 
submitted  to  the  works  council.  No  information  is  available  on  the  extent  to  which  this 
obligation  is  respected,  as  for  confidentiality  reasons  neither  the  equality  body  nor  any  other 
government body can monitor it. It is unclear if employers discuss the reports in works councils 
and adopt corrective measures as a result136. 

By  contrast,  the  UK  and  France  publish  the  results  more  widely,  making  the  threat  of 
reputational  damage  more  credible  and  therefore  more  effective137.  In  the  UK,  where  the  pay 
report  is  published  on  the  employer’s  and  the  government’s  website,  there  was  100% 
compliance in the first year of reporting138. Though the level of compliance was lower in France 

133  Bennedsen, M., Simintzi, E., Tsoutsoura, M. and Wolfenzon, D., ‘Do Firms Respond to Gender Pay Gap Transparency?’, NBER Working 
Paper No 25435, 2019. 
134 Pay reports disclosed in AT, BE, DK, ES, IT, FR, LT, PT and the UK, and pay audits disclosed in DE, FI, FR, PT and SE. 
135  Austria,  Denmark  and  Finland  examples  from  Eurofound,  Pay  transparency  in  Europe:  First  experiences  with  gender  pay  reports  and 
audits in four Member States, Luxembourg, Publications Office of the European Union, 2018. 
136 Interview with the Equality Body in Belgium. 
137 The French index initiative also includes a number of corrective measures. In particular, the Labour Inspectorate carries out 7,000 specific 
inspections per year, with companies still below the required threshold after 3 years facing a fine of up to 1% of the total payroll. A preliminary 
analysis  of 
  https://travail-
third  phase  of 
emploi.gouv.fr/IMG/pdf/dp_egapro-ok-02-bd.pdf.  
138 Dromey, J. and Rankin, L.,  Fair Pay Report: How Pay Transparency can Help Tackle Inequalities,  Institute for Public Policy Research, 
2018, https://www.ippr.org/files/2018-11/the-fair-pay-report-november18.pdf. 

is  available  here: 

the  beginning  of 

implementation 

results  at 

the 

the 

34 

 
 
                                                           
(about  50%),  an  estimated  94%  of  employers  changed  their  internal  company  regulations  to 
align them with the equal pay measures139.  

Although it is perhaps too soon to assess the measures’ impact at a higher level, the experiences 
of the UK and  France suggest  that the threat  to  businesses’ reputational  capital  may be more 
effective at preventing pay discrimination and ensuring compliance and follow-up than ex post 
fines or sanctions. 

Effectiveness in terms of bringing about change in Member States’ legal systems 

As  mentioned  in  the  2017  report  on  the  implementation  of  the  2014  Pay  Transparency 
Recommendation,  the  Recommendation’s  impact  has  remained  limited.  In  13  Member  States 
(BG, CY, CZ, EE, EL, HR, HU, LV, MT, PL, RO, SI, SK), pay transparency measures are still 
entirely absent, while two are considering introducing such legislation (IE and NL). 

The  report  noted  how  secrecy  around  pay  levels  makes  it  difficult  to  detect  discrimination 
cases.  It  also  found  that  the  limited  follow-up  to  the  Recommendation  suggested  a  possible 
need for further targeted measures at EU level. Measures implemented in Member States vary 
substantially in their design and implementation. The specific features of the adopted measures 
have  a  significant  impact  on  their  overall  effectiveness,  either  promoting  or  hindering  their 
potential to generate benefits. 

5.1.6. Effectiveness in terms of the results and impacts achieved   

As mentioned in Section 2.1, the EU action evaluated builds on already existing legislation and 
related CJEU case-law. This limits the possibility to attribute results and impacts specifically to 
the  Directive.  The  specific  additional  measures  brought  about  by  the  Recommendation  have 
more potential for being identified as having effects, but these measures can only have a long-
term  effect  on  the  gender  pay  gap  in  combination  with  other  measures.  As  a  consequence, 
outcomes  and  impacts  are  more  evident  in  countries  where  national  transparency  measures 
have been in place for several years and in countries where the level of compliance is relatively 
high. 

This section reviews progress made in the EU over the evaluation period, first by drawing on 
the set of key indicators defined for the baseline (see Section 2.2) and then by investigating the 
extent  to  which  progress  observed  can  be  attributed  to  EU  action.  Several  studies140  show 
evidence that transparency measures are effective. In addition, there is evidence that collective 
bargaining  also  has  an  impact  on  the  gender  pay  gap,  possibly  by  reducing  the  risk  of 
discrimination through increased pay transparency. All this shows that EU legislative action in 
this area has the potential to yield results in the future. Stakeholders also generally agree with 
the potential benefits of future EU action. 

Progress during the evaluation period 

Table  7  below  presents  an  overview  of  progress  during  the  evaluation  period  on  the  key 
indicators  selected  for  the  baseline.  A  traffic  light  assessment  is  made  for  each  indicator  to 
reflect  the  trend  over  the  2006-2018  period  (EU-25)  and  the  2014-2018  period  (EU-28).  In 
most  cases,  a  positive  trend  was  observed.  For  example,  labour  force  participation  and 
employment rates increased, especially among women, and the gender pay gap decreased. The 
representation  of  women  on  company  boards  also  rose  markedly.  Together,  these  trends 

139 Information received through an interview with a stakeholder in France. It is not clear if the remaining 6% were fined. 
140  For  example,  Nyborg,  A.,  ‘Including  Equal  Pay  in  Collective  Bargaining:  Experience  in  Sweden’,  Presentation  at the  SAAGE  Thematic 
Seminar,  May  2019.  Statistics  taken  from  a  study  by  the  equality  body,  JämO:  Arbetsvärderingssystem  i  Sverige,  Stockholm,  2008a; 
Bennedsen,  M.,  Simintzi,  E.,  Tsoutsoura,  M.  and  Wolfenzon,  D.  (2019),  ‘Do  Firms  Respond  to  Gender  Pay  Gap  Transparency?’,  NBER 
Working Paper No 25435. 

35 

 
 
                                                           
suggest  a  more  efficient  allocation  of  resources  in  the  economy,  increased  productivity  and 
greater  benefits  generated  for  the  EU.  Nevertheless,  gender  gaps  persist  in  labour  market 
participation,  in  employment  rates  and  in  the  quality  of  employment  and  work-life  balance, 
particularly for women with lower educational attainment and/or with a disability141.  

A  number  of  factors  may  have  shaped  these  trends.  As  highlighted  by  the  intervention  logic 
(see  Annex  4),  these  factors  may  include  demographic  and  economic  trends,  other  policies 
introduced in the EU and the Member States, rising social awareness of gender inequalities, as 
well as the economic crisis. The increased involvement of women in the labour market is part 
of a broader trend that has been evident since at least the early 1990s. This trend is driven to 
some  extent  by  demographics  (e.g.  increasing  number  of  working-age  women  and  lower 
fertility  rates), as well as legislative initiatives in European countries142. The sharp increase in 
the share of women represented on the boards of large companies has been driven largely by 
EU143 and national policies. 

Table 7. Changes during the evaluation period (baseline to endline) 

Unadjusted gender pay 
gapb 

Elderly povertyb 

Evaluation endlinea 

Change during evaluation perioda 

EU-25 

EU-28 

2006-2018 (EU-25) 

2014-2018 (EU-28) 

16.5% 

16.0% 

1.5 pp. reduction 

 

1.4 pp. reduction 

16% (F) 

17.0 % (F) 

4.2 p.p. reduction (F) 

 

1.3 pp. increase (F) 

13.4% (M) 

12.5 % (M) 

1.9 p.p. reduction 

1.3 pp. increase (M) 

 

 

Labour force 
participationc 

69.6% (F) 

68.2% (F) 

5.6 pp. increase (F) 

 

1.7 pp. increase (F) 

 

79.8% (M) 

79.2% (M) 

1.4 pp. increase (M) 

1.1 pp. increase (M) 

Employment ratec  

64.9% (F) 

63.3% (F) 

6.5 pp. increase (F) 

 

3.8 pp. increase (F) 

 

Part-time workc 

30.9% (F) 

31.3% (F) 

4.5 pp. increase (F) 

 

0.9 pp. decrease (F) 

 

74.6% (M) 

73.8% (M) 

2.1 pp. increase (M) 

3.8 pp. increase (M) 

Representation of women 
on company boards  

8.8% (M) 

8.7% (M) 

2.6 pp. increase (M) 

0.1 pp. decrease (M) 

30.2% 

26.5% 

21.3 pp. increase  

 

7.1 pp. increase  

 

Notes: Country-level results available in Annex 3. EU-25 and EU-28 samples do not include Ireland, Greece and Croatia. Job satisfaction data 
are not available post-2015 to assess changes that may be due to the 2014 Recommendation. EU-25 values are weighted for the number of 
employees in 2014 (2018 data not available). a All endline estimates are for 2018 except for the gender pay gap and elderly poverty, which are 
from 2017; b Endline estimates are from 2017; c Average values for women (F) and average values for men (M). 

It is possible to investigate further the evolution of the gender pay gap by looking separately at 
‘unadjusted’  gender  pay  gap  as  such,  as  well  as  the  trend  for  the  ‘explained  part’  and  the 
‘unexplained part’ of the gap. The ‘explained part’ of the gap can be linked to  differences in 
some observable variables such as education,  sector, age, etc. The ‘unexplained part144’ is the 
trend  for  the  residual  part,  which  includes  all  possible  but  not  observable  or  not  available 
variables such as negotiating skills, career breaks, personal preferences, etc.  

141 EIGE (2017c), Gender Equality Index 2017: Measuring gender equality in the European Union 2005-2015. Main Findings. 
142  Cipollone,  A.,  Patacchini,  E.  and  Vallanti,  G.,  Women’s  Labour  Market  Performance  in  Europe:  Trends  and  Shaping  Factors.  CEPS 
Special Report No 66, 2012. 
143  For  example,  the  proposal  for  a  directive  of  the  European  Parliament  and  of  the  Council  on  improving  the  gender  balance  among  non-
executive directors of companies listed on stock exchanges and related measures, COM/2012/0614 final — 2012/0299. 
144  In  a  statistical  sense,  ‘explained’  does  not  necessarily  mean  ‘justified  ‘or  ‘non-discriminatory’  as  the  two  components  might  actually  be 
interrelated e.g. the choice of education, sector and occupation might have been influenced already by gender discrimination. See among others 
Grimshaw, Damian and Rubery, Jill., The Adjusted Gender Pay Gap: a Critical Appraisal of Standard Decomposition Techniques , 2002. 

36 

 
 
 
 
 
 
                                                           
A decomposition analysis to break down the data was carried out for this purpose (See Annex 3, 
table  3)  using  data  for  three  time  points  (2006,  2010  and  2014)  available  for  16  countries145. 
This analysis did not allow to identify relevant trends, correlations or cluster of countries. 

Shifts  in  women’s  labour  force  participation  over  the  period  may  explain  changes  in  the 
unexplained component to some extent. This is because a larger participation of women on the 
labour  market  might  by  itself  push  towards  a  shift  in  the  gender  pay  gap.  The  unadjusted 
gender pay gap declined in most countries. Differences in the evolution of the gender pay gap 
over  the  2006  to  2014  period  were  not  evident  between  countries  where  women’s  labour 
participation increased substantially and where it did not. 

Attribution of progress over time to EU action 

Assessing  the  extent  to  which  EU  action  contributed  to  results  at  a  higher  level  i.e.  the 
outcomes and impacts identified in the intervention logic (Annex 4) is challenging for several 
reasons. First, progress over time may be driven by external factors in addition to or besides EU 
action. Secondly, EU action encompasses a wide range of measures, which, together with their 
degree  of  implementation,  vary  across  the  Member  States.  Establishing  a  robust  approach  to 
assessing  such  varying  action  is  difficult,  with  the  desk  research  identifying  very  few 
evaluations  of  specific  measures.  The  findings  from  the  few  robust  studies  identified  were 
triangulated  with  evidence  gathered  from  stakeholders  to  assess  the  overall  attribution  of  EU 
action to the higher-level results through a qualitative ‘strength-of-evidence’ assessment.  

According to the intervention logic (see Annex 4), the first expected direct impact of EU action 
is a reduction in the gender pay gap. A study from Denmark146 found that the pay transparency 
measures introduced there in 2006 (gender pay gap reporting duties for employers with more 
than  35  employees)  caused  a  7%  reduction  in  the  gender  wage  gap  in  the  3  years  after  the 
legislation  was  introduced.  The  study  found  that  this  effect  was  driven  by  men’s  wages 
growing less after the introduction of the legislation, with no simultaneous change in women’s 
wage growth. Studies investigating the same matter for non-EU countries found similar results 
and actually also found that higher female salaries contribute to narrowing the gender gap  147. 
The  key  message  from  these  studies  is  that  pay  transparency  measures  help  to  narrow  the 
gender pay gap, but may also lead to lower wage growth on average. 

The potential impacts of EU action at workplace level relate to workforce retention, worker 
and  firm  productivity  and  business  profitability.  As  outlined  in  the  intervention  logic,  the 
application  of  the  equal  pay  principle  is  expected  to  contribute  to  generating  fairer  and  more 

145 The assessment of the impact of a given measure would ideally require carrying out a ‘counterfactual analysis’ with an experimental design. 
The intuitive concept involves comparing the outcomes of an intervention with the outcomes that would have been achieved if it had not been 
implemented. This is done by looking at the impact on two groups (treatment and control group) that differ only by whether or not they were 
subjected to the intervention. The typical reference context is the testing of medical treatments. However, since the Recast Directive did not add 
major changes to the existing legislation of most Member States, it was unlikely that any impacts would be found following its transposition. 
Similarly, the limited likelihood of impacts being generated limits the potential to compare Member States that introduced legislation against 
those that did not. Finally, the three EU countries that were not subject to the Recast Directive (BG, RO, HR) could have been used as a control 
group, but beyond the mere lack of data for Croatia, there are no Member States with a similar trend in the gender pay gap or in other labour 
market indicators between 2002 and 2006 that also have a similar social and labour market context. In any case, the results were unlikely to be 
robust with such a small sample. Referring to the Recommendation was also not considered likely to produce robust results, as implementation 
began  too  recently  (since  2014)  and  since  Member  States  adopted  a  wide  range  of  measures,  resulting  in  considerable  heterogeneity  in  the 
treatment group. 
146 Bennedsen, M., Simintzi, E., Tsoutsoura, M. and Wolfenzon, D., ‘Do Firms Respond to Gender Pay Gap Transparency?’,  NBER Working 
Paper No 25435, 2019; Huet-Vaughn, E., ‘Striving for status: A field experiment on relative earnings and  labour supply’, Job Market Paper, 
Berkeley: University of California, 2013. 
147 Baker, M., Halberstam, Y., Kroft, K., Mas, A. and Messacar, D., Pay Transparency and the Gender Gap No. w25834, National Bureau of 
Economic Research, 2019; Cullen, Z. and Pakzad-Hurson, B., Equilibrium Effects of Pay Transparency in a Simple Labour Market, Mimeo, 
2018. 

37 

 
 
 
                                                           
diverse  work  environments.  This  in  turn  improves  the  retention  of  female  workers,  attracts 
more  talented  female  employees  and  improves  women’s  career  advancement.  The  relevant 
literature provides robust findings in support of the above hypothesis. For instance, the study on 
Denmark  (mentioned  above),  though  it  cannot  be  generalised  to  other  EU  countries  given 
Danish  specificities,  found  that  in  the  3  years  after  the  introduction  of  pay  transparency 
legislation,  firms  subject  to  the  regulation  hired  around  4.4  pp.  more  women  in  intermediate 
positions than comparable firms not subject to the legislation. In addition, the share of women 
promoted  to  more  senior  positions  was  1.2  pp.  higher  in  firms  applying  pay  transparency 
measures  than  in  other  comparable  firms.  These  findings  are  in  accordance  with  other 
descriptive  evidence  collected.  For  instance,  Dromey  and  Rankin  (2018)  report  the  case  of 
Fujitsu  UK,  which  is  subject  to  pay  transparency  regulation,  where  several  actions  were 
recently taken to  facilitate women’s access  to  senior positions and to  recruit talented women, 
including flexible working time and mentoring programmes for female employees.  

Findings  from  the  desk  research  indicate  that  EU  action  can  have  an  impact  on  worker 
productivity,  job  satisfaction  and  morale.  Whether  these  impacts  are  positive  or  negative 
seems  to  depend  on  the  specific  measure  considered  and,  on  firms’  initial  compensation 
practices.  Pay  transparency  is  likely  to  have  a  positive  impact  on  workers’  motivation  if  the 
underlying  pay  distribution  is  perceived  as  fair;  but  it  may  have  a  negative  impact  if  the 
underlying  pay  distribution  is  perceived  as  unfair148  (which  might  also  depend  on  whether  
employees  compare  themselves  to  a  group  or  to  specific  co-workers).  Therefore,  obliging 
employers to be transparent about pay can be a driver for change towards higher fairness and 
positive  impacts  are  more  likely  to  dominate  over  the  longer  term.  It  may  as  well  have  a 
positive impact on levelling the playing field for companies with fair compensation structures.  

As for productivity, some studies find a positive effect149. The results of the public consultation, 
as well as anecdotal evidence reported in the popular media150, also indicate that initiatives to 
decrease gender-based pay discrimination can have a positive impact on workforce morale and 
motivation.  On  the  other  hand,  research  has  shown  that  disclosing  pay  data  may  also  have  a 
negative  impact  on  workers’  productivity  if  workers  find  out  that  they  are  paid  less  than 
comparable colleagues. In such cases, workers may put less effort into their work as they feel 
they are being treated unfairly. There is no evidence on whether this ‘disgruntlement effect’ is a 
short-term  or  long-term  outcome  of  regulation.  However,  in  countries  where  employers  are 
obliged to take action once pay discrimination is uncovered, disgruntlement can be expected to 
have  less  negative  effects  or  to  last  for  a  shorter  time.  This  shows  that  for  pay  transparency 
measures to have positive effects on workers’ productivity, they should aim not only to create 

148  See      Scott,  D.  (2018).  Pay  Communications  and  Fairness:  An  Employee  Perspective.  Compensation  &  Benefits  Review,  50(1),  5–20. 
https://doi.org/10.1177/0886368718809774 
149 See for instance, A. Chamberlain, “Is salary transparency more than a trend?”, Research report, 2015, available on the  Glassdoor website; 
Arnold,  A.,  Fulmer,  I.S.,  Sender,  A.,  Allen,  D.G.,  Staffelbach,  B.,  &  Perkins,  S.J.  (2018).  International  study  on  compensation  and  pay 
transparency  practices. 
  Lucerne,  Switzerland:  Center  for  Human  Resource  Management,  University  of  Lucerne.  Available  at 
https://www.unilu.ch/fileadmin/fakultaeten/wf/institute/hrm/dok/Forschung/PayTransparency_IntReport.pdf; Belogolovsky, E., Bamberger, P., 
Alterman, V. et al. Looking for Assistance in the Dark: Pay Secrecy, Expertise Perceptions, and Efficacious Help Seeking Among Members of 
Newly Formed Virtual Work Groups. J Bus Psychol 31, 459–477 (2016). https://doi.org/10.1007/s10869-015-9427-4; E. Belogolovsky and P. 
A.  Bamberger,  Signaling  in  Secret:  Pay  for  Performance  and  the  Incentive  and  Sorting  Effects  of  Pay  Secrecy,  Academy  of  Management 
Journal, Vol. 57, No. 6, available at https://doi.org/10.5465/amj.2012.0937; S. Marasi and R.J. Bennett Pay communication: Where do we go 
from  here?,  Human  Resource  Management  Review,  Volume  26, 
Issue  1,  March  2016,  Pages  50-58,  available  at 
https://doi.org/10.1016/j.hrmr.2015.07.002; Shelly Marasi, Alison Wall & Rebecca J. Bennett (2018) Pay openness movement: Is it merited? 
Does  it  influence  more  desirable  employee  outcomes  than  pay  secrecy?,  Organization  Management  Journal,  15:2,  58-77,  available  at: 
https://doi.org/10.1080/15416518.2018.1471978 
150  S.  Cooney,  “Should  You  Share  Your  Salary  With  Co-Workers?  Here’s  What  Experts  Say”,  Times  14  August  2018,  available  at 
https://time.com/5353848/salary-pay-transparency-work/;  S.  McLaren,”  Why  These  3  Companies  Are  Sharing  How  Much  Their  Employees 
Make”,  14  February  2019,  LinkedIn,  available  at  https://business.linkedin.com/talent-solutions/blog/trends-and-research/2019/why-these-3-
companies-are-sharing-how-much-their-employees-make; V. Bolden-Barrett, Top HR academic programs now teach students to advocate for 
pay equity, March 23, 2017, HRDIVE, available at https://www.hrdive.com/news/top-hr-academic-programs-now-teach-students-to-advocate-
for-pay-equity/438718/https://www.hrdive.com/news/top-hr-academic-programs-now-teach-students-to-advocate-for-pay-equity/438718/ 

38 

 
 
                                                           
transparency but also to ensure appropriate follow-up to the discovery of any pay inequalities. 
Even  more  the  case,  considering  the  expanding  availability  of  pay  information  online  that 
reduces the effectiveness of pay secrecy tools. 

The potential impact of EU action on companies’ profitability is highly linked to variation in 
productivity and wages. For instance, the study on Denmark found that profits did not decrease 
after  the  legislation  was  introduced,  although  productivity  decreased.  This  happened  because 
the  negative  effect  on  productivity  was  offset  by  the  lower  wage  growth  of  male  employees. 
Cullen and Pakzad-Hurson (2018) found that firms’ profits increased after the implementation 
of pay transparency, due mainly to the fall in average wages.  

Finally, there is only weak evidence of the impact of EU action on the prevention of gender-
based  pay  discrimination.  A  country  like  Sweden  is  known  to  have  made  large  wage 
adjustments  to  narrow  wage  differences  between  female  and  male  employees.  However,  the 
extent to which this is attributable to EU action is not known since most of the measures date 
from before EU action. 

Regarding increasing access to justice, Dromey and Rankin (2018) report that equal pay cases 
made  up  11%  of  all  labour  court  cases  in  the  UK  in  2017.  Even  if  equal  pay  cases  seem  to 
make  up  a  significant  part  of  labour  litigation,  ‘many  more  cases  on  unequal  pay  go 
unchallenged’. According to most trade union representatives taking part in the European Trade 
Union Confederation (ETUC) survey in 2019, the Directive brought only minimal changes in 
terms of access to justice151. 

There  seems  to  be  evidence  that  stakeholders  still  value  EU  action,  as  it  puts  pressure  on 
several Member States to act in this area and provides a legal toolbox on which victims can rely 
in litigation. Trade union confederations tended to hold the view that the Directive did not have 
any major impact on preventing pay discrimination, although most of them considered that the 
situation would be worse without the Directive152. 

In conclusion, though it is not possible to identify the specific contribution of EU action, there 
was  an  overall  positive  effect  on  workforce  retention,  worker  and  firm  productivity  and 
business profitability. 

The overall assessment of the effectiveness of EU action is cautiously positive. The measures 
introduced at EU level seem to have had a positive impact on reducing the gender pay gap and 
therefore  possibly  reducing  pay  discrimination.  At  least  to  some  extent,  this  impact  may  be 
attributed to EU action. 

Critical issues remain regarding the uniform application of the concepts of ‘pay’, ‘equal pay for 
the  same  work’  and  ‘work  of  equal  value’  and  regarding  access  to  justice,  particularly  in 
relation to the reversed burden of proof.  

Following  the  Recommendation,  some  evidence  was  identified  that  the  EU  action  had  a 
positive impact on workforce participation and retention, had enhanced career progression for 
women  and  had  resulted  in  the  issue  of  equal  pay  achieving  greater  visibility  in  the  public 
consciousness and the political agenda. 

 Table 8 below summarises the findings of the qualitative review. 

151 ETUI, 2019. 
152 ETUI, 2019. 

39 

 
 
                                                           
Table 8. Overall assessment of the Directive in the Member States — effectiveness 

Component 

Objective/Articles 

Indicators 

Application of key 
concepts 

Objective: Legal 
clarity 
Articles 4, 2(1)(e), 29 
and 30 

Clearly defined concepts of ‘pay’, ‘equal work’, 
‘work of equal value’ 
Knowledge among stakeholders (employers, 
judicial actors, employees, trade unions) of 
concepts and criteria 

Access to justice   Objective: Effective 

implementation 
Articles 17, 18, and 19 
and 24 

Burden of proof 
Protection against dismissal 
Compensation level incentivising (or not) victims 
to go to courts 
Organisations with legitimate interests able to file 
action before courts 

Monitoring and 
enforcement 

Objective: Effective 
implementation 
Articles 18, 20 and 25 

Level of penalties sufficiently dissuasive 
Competences of monitoring and enforcement 
bodies 

Job classification 
and evaluation 
systems 

Objective: Preventing 
pay discrimination 
Article 4 

Use of job classification and evaluation systems by 
social partners and employers 
System in place to ensure gender neutrality of the 
classification and evaluation systems 
Promotion of dialogue between social partners  

Overall 
assessment* 

Little 
progress 

Some 
progress 

 Good 
progress 

Good 
progress 

Finally, the persistence of the gender pay gap does not imply that equal pay legislation has been 
ineffective: rather, it demonstrates that measures to eradicate differences in wages between men 
and women require significant changes in labour market behaviour. Since the gender pay gap 
captures  multifaceted  differences in  gendered participation  patterns, its  elimination requires a 
multi-pronged approach. 

5.2.  Efficiency 

The  analysis  of  efficiency  assesses  the  relationship  between  the  resources  used  by  an 
intervention and the changes generated by it. 

The  widespread  variation  in  the  implementation  of  specific  provisions  and  measures  has  a 
significant impact on the efficiency assessment. The efficiency assessment therefore focuses on 
Member States which saw a relatively high level of action linked to implementing the Directive 
and  the  Recommendation  and  where  robust  evidence  could  be  gathered.  For  a  selection  of 
countries,  this  section  reviews  the  financial  and  human  resources  that  different  stakeholders 
have  invested  in  putting  measures  in  place  to  comply  with  new  obligations.  The  efficiency 
assessment  presented  in  this  section  remains  to  a  large  extent  theoretical,  even  given  this 
evaluation’s  ex  post  character.  The  reason  is  that  the  Recommendation  dates  from  2014  (the 
last  year  for  which  data  at  EU  level  are  available)  and  several  Member  States  are  still  in  the 
very early stages of implementing follow-up measures. 

This efficiency assessment focuses in particular on administrative and compliance costs. This is 
because the key stakeholders broadly fell into two opposing camps on this issue. A substantial 
majority of employers (84%) reported in the public consultation that pay transparency measures 
would increase administrative costs to a rather large or very large extent. In contrast, that view 
was shared by only 25% of individuals and 12% of trade unions/NGOs.  Examining evidence 

40 

 
 
for any administrative cost placed on businesses therefore plays a prominent part in the present 
evaluation. 

Compliance costs and administrative burden 

The Directive’s compliance and administrative costs have been assessed  as limited, and were 
primarily felt by the Member States. In contrast, compliance and administrative costs stemming 
from  the  Recommendation  were  experienced  more  strongly  by  employers.  They  are 
summarised in Table 9 below. 

The costs to Member States consisted of the financial resources needed to set up and operate 
monitoring  and  enforcement  mechanisms.  These  costs  have  proved  to  be  low  at  most,  also 
because  resources  dedicated  by  Member  States  were  often  none  or  low,  and  not  necessarily 
sufficient to ensure the legislation’s effective implementation. Would the effort to monitor and 
ensure enforcement of the rights be more solemn, some additional resources would likely need 
to  follow.  In  particular,  pay  discrimination  enforcement  has  been  rarely  a  focus  of  labour 
inspections  given  the  lack  of  resources  allocated  to  that  task.  The  failure  to  ensure  strong 
enforcement by labour inspectorates  and/or equality bodies has pushed the enforcement  costs 
onto  victims,  especially  costs  related  to  the  burden  of  proof  (see  section  on  effectiveness). 
Several  Member  States  did  not  devote  any  resources  at  all  to  implementing  the  Directive.  In 
some Member States, implementation was organised through reallocation of existing financial 
resources (e.g. ES, SE, SK). Some Member States offered support to companies to implement 
equal pay measures. The type of support offered involved for instance the development of tools 
to apply gender-neutral job classification systems and the financing of training to apply those 
tools (e.g. Luxembourg).  

Pay  transparency  measures  introduced  following  the  Recommendation  did  not  impose 
substantial new costs on public administrations in most Member States. In Germany, the impact 
assessment of the national pay transparency law estimated that the total additional yearly costs 
for  public  administration  would  be  about  €27,000  at  federal  level  and  around  €83,000  at 
regional  (Land)  level.  Some  Member  States  (e.g.  AT,  DE,  PL,  UK)  have  developed  wage 
calculators  to  support  employers  in  complying  with  pay  transparency  legislation  or  in 
developing  web  calculators.  Luxembourg  financed  the  development  of  software  (Lobig-Lux) 
that supports employers in producing gender pay gap reports. The exact cost of these measures 
is difficult to estimate, but national experts involved in the evaluation judged them to be low. 

41 

 
 
Table 9. Overview of actual costs by stakeholder type 

Type of cost 

Enforcement and 
monitoring of the 
Recast Directive 

Promoting the use of 
gender-neutral job 
evaluation systems 

Development and 
utilisation of tools 

Pay information 
requests (cost per 
request) 

Pay discrimination 
complaints (cost per 
complaint) 

Judicial procedures 

Substantive compliance 
costs for pay 
transparency measures 

Monitoring costs of 
pay transparency 
measures 

Administrative burden 
cost for pay 
transparency measures 

*/**   

Limited freedom to 
negotiate wages 

* 

* 

s
e
s
s
e
n
i
s
u
B

s
n
e
z
i
t
i

C

* 

* 

* 

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s
e
t
a
t
S
r
e
b
m
e
M

s
n
o
i
n
u
e
d
a
r
T

0/*   

0/*   

* 

Explanation 

Some Member States (e.g. SE, ES, SK) reallocated resources. In others (e.g. 
EE,  PT,  NL),  the  resources  allocated  were  judged  insufficient  to  guarantee 
effective implementation of the legislation. 
In Luxembourg, the government finances voluntary training for employers on 
job  classification,  with  an  estimated  cost  of  €40,000  per  company.  In 
Belgium,  the  Ministry  of  Employment  reviews  all  collective  agreements  to 
ensure their gender neutrality. No additional staff have been allocated to the 
task. 
Some  Member  States  (e.g.  AT,  DE,  PL,  UK)  have  developed  tools  such  as 
wage  calculators  to  promote  implementation  of  the  legislation.  Information 
on  the  costs  of  developing  these  tools  could  not  be  obtained,  but  the  costs 
should be minimal. 
In Germany, an impact assessment estimates 75,602 requests for information 
on  pay  per  year.  Each  request  would  take  70  minutes  for  an  employee  to 
compile, with an average cost for employers of €39153.  

*   The costs to individuals are (primarily) the stigma, risk of retaliation and the    
 cost of filing pay discrimination complaints (can be assumed to be the same as   
 the  costs  of  filing  a  pay  information  request).  The  costs  to  employers  are 
similar to those for pay information requests.  

***  ** 

* 

**  Citizens — the availability of legal aid to offset the impact on individuals is 

limited.  
Member States — no substantial costs were triggered by the implementation 
of the Directive as the judicial system was in place and did not require 
adaptations or new mechanisms. The same is true for assistance by equality 
bodies.  
Businesses — may suffer a loss to their reputation if pay discrimination is 
established in their organisation.  
Trade unions — costs of legal representation of potential pay discrimination 
victims in some countries. 

*/**  **  *  For businesses see Table 10. These costs include adapting the pay database 

and training staff.  

**  *  Member States and, to a lesser extent, trade unions are involved in the 

monitoring of pay transparency measures, the extent of which vary across 
Member States, depending on the measures adopted. Equality bodies have 
monitoring responsibilities in all countries, while in some cases works 
councils are involved in monitoring activities.  
These costs are higher for pay audits than for pay reports and are primarily 
driven by the cost of producing and analysing gender pay gap reports. 

The public consultation provides some evidence that employers might face an 
indirect cost caused by the limitation of their freedom to negotiate wages. 
This could also be a cost for employees if equal pay measures limit individual 
wage bargaining power. 

Despite the concerns expressed by businesses, the evaluation found low to medium compliance 
costs for employers, including low administrative burden costs related to the implementation of 
pay transparency measures. It should be noted though, that choices made by analysed Member 
States, in particular concerning the company threshold for pay reporting, are sometimes laxer 
than  those  suggested  by  the  2014  Recommendation.  Part  of  the  administrative  cost  for 

153 Deutsche Bundestag, Entwurf eines Gesetzes zur Förderung der Transparenz von Entgeltstrukturen, Gesetzentwurf des Bundesregierung, 
Drucksache 18/11133. 

42 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                           
employers  is  linked  to  one-off  adjustments  for  companies’  HR  and  IT  departments  and/or 
payroll  service  providers  (understand  pay  information  duties;  set  up  (if  not  in  place  yet)  or 
make  adjustments  to  the  pay  database  system  and  related  software;  provide  staff  with  the 
necessary training).  

The evaluation demonstrated that costs for business largely depend on the complexity and level 
of  implementation  requirements  Member  States  put  in  place.  Such  requirements  focus  on  the 
types  of  action  that  employers  are  required  to  implement,  and  the  specific  reporting 
requirements imposed by the national legislation. In the case of reporting, employers may need 
to report annually, every 2 years or every few years, and may need to report mean or median 
average pay and/or bonus figures. The administrative burden cost was found to be highest for 
pay  audit  measures,  although  this  cost  was  limited  too  and  the  measures  were  also  found  to 
have the advantage of detecting pay discrimination and enabling earlier intervention. 

Table  10  presents  an  overview  of  the  quantitative  estimates  of  the  compliance  costs  and 
administrative  burden  costs  faced  by  businesses  in  implementing  pay  report  and  audit 
measures. These estimates are simplified and based on anecdotal information gathered during 
the study. They are likely to vary between different companies in the same country, but provide 
useful insights into the extent of costs faced by these stakeholders. 

Table 10. Estimated costs of pay reporting and pay audit measures per business in a selection 
of Member States 

Substantive 
compliance costs 

Administrative burden costs (annual) 
Pay reporting 

Pay audit 

Information not 
available 
€2,768a 

€1,470 

n.a. 

Reported to be low 

€10,830b 

Measures in place 

BE  Reporting duty  

DE 

FR 

Pay information right, 
reporting duty and pay audit 
(not mandatory) 
Reporting duty and audit 

SE  All measures 

Information not 
available 
Information not 
available 
€190d 

Reported to be low 

€146-192 

Information not 
available 
€7,673-15,257c 

UK  Reporting duty 
€287 
Note: One-off costs may include staff training and costs of developing a pay database. 
a From information collected, the upper bound was estimated at 80 hours multiplied by 34.6 (i.e. the labour cost of an average employee in 
Germany).  
b We assume three persons from the human resources department were trained over a three-day period and earned the average hourly wage and 
€10,000 as the average cost of engaging a consultant.  
c The total internal cost of pay audits in 2006 (€23,734,100) was divided by the estimated number of employers in Sweden in 2006 (553,918), 
multiplied by an estimated compliance rate of 48% (Nyberg, 2019
of an external auditor was estimated assuming that it takes between 1 and a half and 3 months to conduct a pay audit and applying the average 
unit labour cost in Sweden in 2006 (€31.6). This leads to a lower bound estimate of €7,584 and an upper bound estimate of €15,168, to which 
the value for internal costs of pay audits can be added to obtain the figures in the table.   
d The estimated €2 million was divided by the number of employers subject to the legislation. Dromey and Rankin (2018)
employers in the UK complied with the legislation.  

). This gave an internal cost of pay audit of €89 per firm. The average cost 

 note that 10,528 

n.a. 

154

155

Based on the information available, the rough estimate of the one-off cost for the HR and  IT 
department  mentioned  above  could  not  exceed  10-30  person-days  per  company.  In  the  UK, 
total one-off costs were estimated at €2 million (of which an estimated 75% was staff training 
costs).  As  for  regular  reporting,  estimates  varied  from  10  person-days  per  report  in  a  large 

154 Nyberg, A., ‘Including equal pay in collective bargaining. The experience of Sweden,’ Presentation at the SAAGE Thematic Seminar, May 
2019. 
155  Dromey  J.  and  Rankin  L.,  The 
http://www.ippr.org/research/publications/the-fair-pay-report 

fair  pay  report:  How  pay 

inequalities,  IPPR,  2018,  

transparency  can  help 

tackle 

43 

 
 
 
 
 
 
 
                                                           
German  bank,  to  estimated  annual  costs  of  €287  per  employer  in  the  UK,  €146-192156  in 
Sweden and €1,470157 in Belgium. 

The  limited  impact  of  equal  pay  measures  on  the  costs  for  companies  is  confirmed  by  the 
outcomes  of  the  mutual  learning  programme  on  equal  pay158  organised  by  the  European 
Commission  in  May  2019.  Experts  consider  that  the  implementation  of  the  most  progressive 
measure  to  promote  equal  pay,  equal  pay  certification  (which  does  not  exist  in  the  EU,  but 
which does exist in Iceland), may reasonably be considered as giving rise to an upper boundary 
of costs borne by business. Available evidence from the first phase of implementation of equal 
pay standards in Iceland shows an average total cost of certification estimated at approximately 
€21,700  over  an  average  of  6  months  to  2  years  of  implementation,  accounting  for  training, 
consultancy and fees to the accreditation institution. The costs of such certification system does 
not seem to have been a major barrier to implementation according to Icelandic companies that 
implemented the standard, though it was judged expensive by smaller companies. 

Costs  incurred  in  the  short  term  are  likely  to  smooth  out  over  time  and  to  be  absorbed  into 
standard  business  practices;  these  should  be  less  of  an  issue  for  companies  with  well-
established HR policies. On a recurrent basis, the administrative burden cost for companies is 
related to regular pay reporting or replying to requests for pay information. 

The evaluation found no evidence that compliance and administrative costs would be higher for 
small and medium-sized enterprises, even though some countries had in place more stringent 
thresholds  for  pay  transparency  measures  than  those  imposed  by  the  Recommendation  (e.g. 
Denmark).  One  explanation  could  be  that  Member  States  with  a  low  employee  threshold  for 
reporting face low costs in general because of well-developed pay and monitoring systems that 
pre-date  the  legislation.  These  countries  are  typically  located  in  Scandinavia  (e.g.  Denmark). 
By contrast, Member States with higher employee thresholds (e.g. Germany) may face higher 
costs due to the need to update less-developed pay systems in SMEs. 

The evaluation found particularly high access to  justice costs for  citizens. These relate to the 
direct costs involving in making a request for pay information, filing complaints and bringing 
equal pay cases to court. The main factor making costs disproportionate for individuals was the 
poor application in most Member States of the burden of proof principle. 

In  most  Member  States,  organisations  such  as  trade  unions  and  equality  bodies  can  help 
potential  victims  to  file  pay  discrimination  complaints.  Despite  this,  the  problems  with  the 
burden  of  proof  and  the  complexity  of  building  a  legal  claim  mean  that  victims  would  most 
likely have to seek legal representation. Costs relating to legal representation are the highest: in 
most Member States, lawyers’ fees are (on average) between €80-100 an hour, and it cannot be 
assumed  that  legal  aid  is  likely  to  be  available  to  a  victim,  although  ‘no-win,  no-fee’ 
arrangements may enable victims to pursue claims (e.g. UK). In some countries, potential pay 
discrimination victims can obtain legal representation from equality bodies (e.g. DK, SK, SE), 
trade unions (e.g. BE, BG, EE, DK, DE, FI, FR and SE) and other organisations dealing with 
equal  pay  issues  (e.g.  NGOs).  However,  even  in  such  cases,  availability  of  resources 
determines  how  far  such  bodies  can  get  involved  in  bringing  claims  in  practice  (see  Section 
5.1). 

Lengthy  procedures  contribute  to  disproportionate  judicial  costs  for  victims.  Limited 
information was available on the average time it takes for the typical pay discrimination case to 

156 Smith, M., ‘The Costs and Benefits of Pay Transparency’, Presentation at the SAAGE Thematic Seminar, Brussels, May 2019. 
157 Source: Stakeholders’ interviews conducted as part of national research. 
158 https://ec.europa.eu/info/publications/eu-mutual-learning-programme-gender-equality-equal-pay-iceland-27-28-may-2019_en 

44 

 
 
                                                           
be resolved, though the national research found that such cases may be quite long, taking even 
up to 10 years to be resolved (UK, CZ). 

Cost of no action and longer-term effects  

While most of the costs of EU equal pay legislation are generally incurred by stakeholders in 
the short term, most of the benefits are expected in the longer term. In the selection of countries 
for which cost estimates for companies were available (see Table 10), the efficiency assessment 
had  a  closer  look  at  the  level  of  potential  benefits  that  can  be  generated  by  those  pay 
transparency measures — specifically, pay reporting and pay auditing — that could potentially, 
depending on the circumstances (as mentioned above) require more costs than the others. 

The key benefit in the long term has been assumed to be the reduction in the gender pay gap 
(see  Table  1  in  Annex  3).  This  follows  from  the  assumption  that  making  pay,  and  any 
differences in pay for similar work, more transparent is a step towards equal pay for the same 
work  or  work  of  equal  value.  This  assumption  is  confirmed  by  studies  showing  that  when 
respondents  agree that pay  is  transparent in  their organization, the  gender wage  gap vanishes 
for women doing similar jobs to men when all compensable factors are adjusted159. While it is 
not  possible  to  calculate  precisely  how  far  the  gender  pay  gap  would  have  decreased  in  the 
absence  of  pay  reporting  measures,  it  is  reasonable  to  assume  that  at  least  a  share  of  the 
observed decline in the gender pay gap is a result of the legislation160.  

The extent to which legislation can have an impact on the gender pay gap depends partly on the 
level of compliance with the legislation, as well as on the extent to which firms take follow-up 
measures as a result of the information obtained through compliance with the legislation. This 
differs  significantly  across  Member  States.  For  the  UK,  recent  estimates  suggest  that 
compliance  is  close  to  100%161,  while  for  Sweden  the  evidence  suggests  compliance  has 
increased over time, from 48% in 2008 to 70% in recent years162. Factors affecting compliance 
can  include  whether  fines  can  be  imposed  on  companies  which  fail  to  comply,  as  well  as 
whether Member States invest in attracting media interest to the topic, pushing for naming and 
shaming, thus creating an incentive for companies to comply to avoid reputational damage. 

Finally,  among  the  long-term  benefits,  it  is  worth  mentioning  the  reputational  benefits  for 
employers, as adopting equal pay measures signals to customers and workers that they run a 
fair  business.  This  can  have  a  positive  effect  on  attracting  and  retaining  talent  and  on  the 
competitiveness  of  EU  companies.  Workers  are  generally  more  motivated  and  satisfied  if 
working for a fair employer, which in the long run can improve firm productivity. In addition, 
another  important  long-term  benefit  is  the  increased  awareness  of  gender  equality  matters 
throughout society. This itself can improve the effective implementation of the legislation and 
generate more widespread benefits for all stakeholders. 

Table 11. Overview of benefits by stakeholder type 

Type of benefit  Employees 

Businesses 

Member States 

159  Payscale  (2019),  Does  Pay  Transparency  Close  The  Gender  Wage  Gap?  Pay  Equity  For  Men  And  Women,  available  at: 

https://www.payscale.com/data/pay-transparency#quit-form  

160  As  mentioned  before,  a  recent  study  in  Denmark  found that  the  introduction  of  pay  transparency  measures  led  to  a  7%  reduction  in  the 
gender pay gap over a three-year period. 
161  Dromey  J.  and  Rankin  L.  (2018),  The  fair  pay  report:  How  pay  transparency  can  help  tackle  inequalities,  IPPR,  available  at: 
http://www.ippr.org/research/publications/the-fair-pay-report 
162 Nyberg, A., ‘Including equal pay in collective bargaining. The experience of Sweden,’ Presentation at the SAAGE Thematic Seminar, May 
2019. For Belgium, it was not possible to collect evidence on the actual level of compliance. A representative of the Belgian equality body 
pointed out that as there is no effective monitoring mechanism in place, it is not possible to retrieve data on the number of firms that comply 
with the legislation (interview conducted as part of the national research in Belgium). 

45 

 
 
                                                           
Short-term 

Increased potential for women to 
advance in their career 

Stable profit 

Better enforcement of fundamental 
right 

Long-term 

Increased retention of women 
Less unjustified pay differences 
between men and women; 
Higher earnings for women 
Lower risk of poverty in old age 

Increased revenue due to 
reputational capital 

Increased awareness of equal pay 
issues; 
Increased participation of women in 
the labour force; 
Welfare gains 

5.3. Relevance 

‘Relevance’  here  means  how  far  the  provisions  of  the  Directive  and  the  Recommendation 
relating to implementation of the equal pay principle were and  remain relevant to the need to 
ensure  equal  pay  between  men  and  women  in  the  EU  and  prevent  gender-based  pay 
discrimination.  The  evaluation  assessed  the  relevance  of  the  EU  action  in  relation  to  the 
original and current problems and needs, analysed the key factors supporting the relevance of 
the EU action, and identified factors limiting the relevance of the EU action. 

5.3.1 Relevance to original needs 

As  presented  in  the  intervention  logic  (see  Annex  4),  the  Directive  aims  to  ensure  that  the 
implementation  of  the  principle  of  equal  treatment,  including  equal  pay,  ‘is  made  more 
effective by the establishment of appropriate procedures’ (Article 1) and prevents  gender pay 
discrimination  in  the  EU.  The  Recommendation  was  introduced  in  2014  to  tackle  one  of  the 
issues  identified  as  a  barrier  to  implementing  the  principle  of  equal  pay,  namely  the  lack  of 
transparency in pay systems. 

The  principle  of  equal  pay  was  originally  established  under  the  Treaty  of  Rome  in  1957  for 
economic  reasons  at  the  demand  of  a  Member  State,  over  concerns  about  a  competitive 
disadvantage for those Member States applying the principle of equal pay. The EU was tasked 
with  guaranteeing  the  principle  of  equal  pay  for  the  same  work  and  work  of  equal  value 
between women and men in  its role of safeguarding a level  playing field across the EU.  The 
CJEU later elevated equal pay to a principle of both economic and social aims with the stature 
of a fundamental right directly applicable across the EU, which individuals can invoke before 
national jurisdictions. This initial need for a level playing field remains relevant and the role of 
the EU in fulfilling this need is essential. 

As highlighted in the baseline assessment, the gender pay gap in the EU-25 was 18.0% at the 
time the Directive was introduced. It was particularly high (around or above 20%) in Estonia, 
Austria,  Cyprus,  Slovakia  and  Czechia,  but  below  10%  in  Poland,  Malta,  Romania  Slovenia 
and Italy. As mentioned earlier in this staff working document, insight into the specific national 
circumstances may be needed in order to interpret these percentages.  

A statistical working paper from Eurostat163 analyses more in detail the gender pay gap data164.. 
It finds that economic activity and working time are the main drivers for the explained share of 
the gender pay gap. These factors could explain 32% and 13% respectively of the gender pay 
gap  at  EU  level  in  2014.  The  difference  between  employers  in  the  public  and  private  sectors 
was not found to be significant overall, although it was notable in some Member States (BG, 
DK, HU, NL, SE). In the case of the Netherlands, for instance, this difference plays a role in 

163 Leythienne, D. and Ronkowski, P. A decomposition of the unadjusted gender pay gap using Structure of Earnings Survey data, Eurostat, 

Statistical working papers, 2018. 

164  The  statistical  working  papers  collection  is used  to publish  innovative  methodological  work  to  inform  and  stimulate  discussions  among 

statisticians. Therefore, the data and statistics in SWPs should be considered as work in progress. 

46 

 
 
 
 
 
                                                           
explaining  the  gender  pay  gap,  due  to  the  higher  likelihood  of  women  working  in  the  public 
sector, where wages are lower on average. 

5.3.2. Relevance to current needs 

The  #MeToo  global  movement  brought  awareness  of  violence  and  discrimination  against 
women  on  a  global  scale,  including  in  the  EU,  with  different  variants  of  the  famous  hashtag 
being  used  across  the  Member  States.  While  it  is  too  early  to  assess  the  impact  of  the 
movement on equal pay claims, some stakeholders interviewed as part of the data collection for 
this  evaluation  mentioned  the  link  between  the  #MeToo  and  higher  level  of  complaints  to 
equality bodies. 

The gender pay gap slowly declined between 2006 and 2017, but it remains substantial: 16.5 % 
in the EU-25 and 16.1 % in the EU-28 (see Annex 1 for national data). Differences are evident 
across the Member States. The gender pay gap has decreased to varying degrees in 18 Member 
States,  while  7  others  have  either  shown  no  progress  at  all  (FR,  SI)  or  even  a  significant 
increase in the gender pay gap (BG, MT, PT, LV, IT165).  
National studies166 carried out in Member States having pay reporting and/or auditing in place 
demonstrated the capacity of those measures to detect a company-level gender pay differences. 
In Finland, a study showed that the gap could not be explained in 11 % of the cases detecting 
pay difference.  In Sweden, 3 out  of 5 companies which conducted pay  audits  discovered pay 
differences  which  needed  adjustment  or  action  to  be  taken.  In  Austria  35 %  of  respondents 
claimed their reports showed that women earned less than men in the same pay category. 

Other sources of evidence, including European public opinion polls, the public consultation and 
stakeholder  interviews,  highlight  the  continued  prevalence  of  gender  pay  discrimination.  The 
relevance  of  EU  action  to  current  needs  is  also  underlined  by  citizens’  perceptions  of  the 
existing  gender  pay  gap  and  the  need  to  ensure  equal  pay  for  work  of  equal  value. 
Eurobarometer  surveys167  show  that  almost  7  in  10  (69%)  European  citizens  believe  that 
women are paid less than men per hour of work, with less than one quarter (23%) believing that 
women are paid the same (see Figure 2). Women themselves are more likely than men to think 
that women are paid less (74% vs 65%).  

The  social  perceptions  of  the  gender  pay  gap  differ  widely  across  Member  States.  In  24 
Member States, the majority of respondents believe that women are paid less than men per hour 
of work, including 94% in Sweden, 88% in the Netherlands and 84% in Germany. At the other 
end of the scale, only 31% of respondents in Romania, 34% in Bulgaria, 39% in Malta and 43% 
in Greece believe this to be the case168.  

Citizens’  perceptions  of  gender  pay  discrimination  at  their  own  place  of  work  are  generally 
lower.  In  most  (19)  countries,  the  majority  of  respondents  thinks  that  women  and  men  in 
equivalent  positions are paid  the same in  their company, with  respondents  in the Netherlands 
(68%), Finland, the UK and Romania (66% each) most likely to believe this169. At the other end 
of the scale, in Czechia an absolute majority of respondents believe that women in equivalent 

165 Gender pay gap statistics are not available for Croatia, Ireland and Greece. 
166 The following examples come from Eurofound (2018), Pay transparency in Europe: First experiences with gender pay reports and audits in 
four  Member  States.  Available  at:  https://www.eurofound.europa.eu/publications/report/2018/pay-transparency-in-europe-first-
experiences-with-gender-pay-reports-and-audits-in-four-member  

167 Eurobarometer (2017), Gender Equality 2017. Special Eurobarometer 465 — Wave EB87.4 — TNS opinion & social. 
168 Ibid. 
169 Ibid. 

47 

 
 
                                                           
positions  are  paid  less  than  men  (56%).  This  view  is  held  by  a  relative  majority  in  Slovakia 
(49%), Germany (47%), Austria (43%) and Hungary (42%170). 

 At the same time, there is broad social support across the EU for the principle of equal pay for 
equal work. 

The Eurobarometer survey171 further shows that 90% of Europeans consider it unacceptable for 
a woman to be paid less than a man for doing the same job in any circumstances.   

The results  from  the 2017 Eurobarometer are  echoed in  the results of the public  consultation 
(which  is  not,  however,  based  on  a  representative  sample).  Overall,  44%  of  respondents  felt 
that  men  and  women  are  not  paid  equally  for  the  same  work  or  work  of  equal  value  in  their 
countries (responding either ‘yes’ or ‘partially’). By contrast, 23% of respondents believed that 
men  and  women  are  paid  equally,  while  5%  had  no  opinion  or  did  not  answer  the  question. 
Citizens and trade unions/NGOs were substantially more likely to believe that women and men 
are  not  paid  equally  for  the  same  work  or  work  of  equal  value  (55%  and  57%,  respectively) 
than companies and businesses (3%). 

The ongoing need to tackle gender pay discrimination — and the continuing relevance of EU 
action  — was also  emphasised in  the EU-level  interviews carried out  for the evaluation.  The 
stakeholders interviewed pointed to the need to have provisions in place to draw attention to the 
persistent  gender  pay  gap.  They  highlighted  that  EU-level  legislation  remained  relevant  to 
addressing  the  needs  of  the  current  situation,  but  more  effort  is  required  to  ensure  its  better 
implementation on the ground, including more awareness and support for cultural and societal 
attitude change. From a policy perspective, EU action remains or is even increasingly relevant, 
as reflected in the Commission priorities relating to the 2014-2019 Gender Equality Strategic 
Engagement172 and the European Pillar of Social Rights173.  

5.3.3. Key factors promoting the relevance of EU action 

The evaluation highlighted a range of  factors, both  internal  and external  to EU action, which 
contributed to this action’s increased relevance.  

The  Recommendation’s  introduction  in  2014  increased  the  relevance  of  EU  action  to  current 
needs. This is because lack of transparency in pay systems was identified as a key issue in the 
implementation  of  the  Directive,  where  measures  to  increase  pay  transparency  were  noted  as 
the key missing factor174. The lack of transparency in pay systems is directly linked to the lack 
of awareness of gender bias and discrimination in pay, and constitutes a significant obstacle for 
victims  to  claim  for  equal  pay.  The  Recommendation  aimed  to  address  this  need  for  further 
transparency in pay structure. Adopting the Recommendation thus contributed to increasing the 
relevance of measures adopted at EU level and contributed to increasing transparency, in terms 
both  of:  (i) knowledge of actual unjustified pay  differences between women and men for the 
same work and work of equal value; and (ii) access to information. The adoption of the EU’s 
2017-2019 gender pay gap action plan further strengthened the relevance of the EU action by 
specifying  a  set  of  measures  to  tackle  root  causes  of  the  gender  pay  gap  in  a  systematic  and 
integrated way175.  

Given  the  increased  policy  debate  and  action  on  pay  transparency  in  national  policy  and  the 
mainstreaming  of  pay  transparency  in  policy-making  and  pay-setting  mechanisms,  the 

170 Ibid. 
171 Ibid. 
172 https://ec.europa.eu/info/policies/justice-and-fundamental-rights/gender-equality/gender-equality-strategy_en. 
173 https://ec.europa.eu/commission/priorities/deeper-and-fairer-economic-and-monetary-union/european-pillar-social-rights_en. 
174 European Commission (2013). 
175 https://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=607452 

48 

 
 
                                                           
relevance of EU  action is also  reflected in  stakeholder opinions expressed through the public 
consultation. Overall, more than 40% of respondents agreed — or somewhat agreed — with six 
broader impacts of EU legislation (see Figure 2). Opinions on the extent to which public debate 
had increased varied to some extent by stakeholder group, but not substantially. 

Figure  2.  Shares  of  answers  to  the  public  consultation  concerning  the  broader  impact  of  the 
Gender Equality Directive and Pay Transparency Recommendation 

Source: ICF (2019), Public consultation report (Question 5)  

The greatest level of impact was found in the increased public debate about the need to ensure 
pay  transparency  (more  than  70%  of  respondents  agreed  or  somewhat  agreed),  with  little 
variation  by  stakeholder  group  (see  Figure  3).  Some  respondents  noted  that  the  debate 
concerning  the  gender  pay  gap  has  intensified  over  time,  but  that  this  may  not  be  fully 
attributable to EU action. 

Figure 3. Shares of ‘agree’ and ‘somewhat agree’ responses about the need to ensure pay 
transparency and the need for effective measures by stakeholder group 

Source:  ICF  (2019),  Overview  of  replies  on  question  5 of  the  public  consultation.  A  breakdown  is  provided  for 
three stakeholder groups where the sample size was greater than 20 responses.  

In the targeted survey, the majority (67%) of stakeholders affirmed that the introduction of pay 
transparency  measures  in  their  country  along  the  lines  proposed  in  the  Recommendation  had 

49 

 
 
 
 
led to pay transparency issues being considered more widely in policy-making and in company 
policy.  

The evaluation also highlights that, in parallel,  a set of external factors in the wider political, 
economic and labour market context have also contributed to the continuing relevance of EU 
action.  

As shown in the Baseline scenario and in the Section 5.2 on the Effectiveness in this document, 
the  long-term  trend  across  the  EU  has  been  towards  increased  labour  force  participation  of 
women.  More  women  entering  the  labour  market  means  more  women  at  risk  of  pay 
discrimination, which in turn increases the relevance of EU action. 

Across European society, there is greater awareness and more political attention paid to overall 
gender equality and equal pay challenges in particular. This has been supported more recently 
by  the  #MeToo  movement  that  brought  awareness  on  issues  of  violence  and  discrimination 
against women, the broad social support for the gender equality agenda (see Annex 2  for an 
overview  of  European  public  opinion),  and  by  the  rapid  change  in  European  labour  markets, 
which have steadily made employment opportunities more diverse176. Lastly, awareness of pay 
transparency  may  have  been  boosted  by  increased  digitalisation  and  the  availability  of  wage 
calculators  (e.g.  the  Pay  Transparency  Monitor  in  Germany177)  and  web  platforms  (e.g. 
Glassdoor and Payscale), thus complementing EU action. 

5.3.4. Key factors requiring strengthened EU action 

Evidence collected and analysis of the existing literature indicates that a number of factors have 
limited the relevance of EU action. These are set out below. 

Lack of transparency in pay systems 
The lack of pay transparency contributes to the lack of awareness of gender pay discrimination 
and represents an obstacle preventing victims from claiming equal pay. It also makes it difficult 
for victims to access data and evidence to demonstrate direct or indirect difference in pay. That 
is why the Commission adopted the Recommendation in 2014. As illustrated in Section 4, the 
evaluation  of  the  implementation  of  the  Recommendation  revealed  limited  follow-up  by 
Member States.  
National  experts involved in  the evaluation  cited a number of  reasons  for the  absence of  pay 
transparency measures:  

 

 
 

resistance from employers due to costs (BG, CZ, HU, LV, NL);  
the argument that it is against the culture of confidentiality around remuneration (BG, 
CZ, MT, PL);  
the belief that gender pay inequality is not (crucial) issue in the Member State (CY, HU, 
LV, SI);  
the belief that the gender pay gap would be solved by work-life balance measures rather 
than the transparency measure (CY, NL);  
  use of the confidentiality clause (CZ, MT);  
  a lack of political will (EE, LV, PL, SI);  

 

176  Impact  assessment  accompanying  the  proposal  for  a  Council  recommendation  on  access  to  social  protection  for  workers  and  the  self-
employed COM(2018) 132 final — SWD(2018) 71 final. 
177  Cited  in  EIGE,  Tackling  the  gender  pay  gap:  not  without  a  better  work-life  balance,  2018.  The  pay  calculator  is  available  at: 
https://www.monitor-entgelttransparenz.de/ 

50 

 
 
                                                           
  existence  of  other  transparency  mechanisms  such  sex-disaggregated  data  (LU),  access 
to pay information by trade unions or employee representatives (RO) or an obligation to 
publish basic pay in job advertisements (SK).  

Remaining barriers to access to justice  
The  Directive  requires  Member  States  to  ensure  access  to  justice  for  the  victims  of  sex 
discrimination, including in relation to pay. The evaluation found that despite these provisions, 
awareness of discrimination rights and redress mechanisms remains low among the EU public. 
Low awareness of the judicial redress mechanisms for victims of gender pay discrimination is 
confirmed by public opinion polls. Just over one quarter of European citizens believe that equal 
pay for equal work is guaranteed by law, with the majority actually believing the opposite (26% 
and 59% respectively178).  
Awareness of the legal provisions guaranteeing equal pay ranges from above 40% in Romania, 
Luxembourg and Latvia, to lows of 19% in Spain and even 15% in Germany and France. The 
proportion stating that they  do not  know is  also  significant in  some other countries:  Bulgaria 
(34%), Estonia (32%), the UK and Malta (22%) and Poland and Italy (21%179). 

Such low levels of awareness, combined with the range of barriers to access to justice already 
presented in Section 5.1 on effectiveness, explain why the number of pay discrimination cases 
referred to national courts remains very low in most Member States. Where pay discrimination 
cases  are  brought,  they  tend  to  be  lengthy180.  The  scarcity  of  national  case-law  on  equal  pay 
may relate to difficulties in establishing convincing cases for pay discrimination. Furthermore, 
the  issue  of  access  to  justice  over  pay  discrimination  in  conjunction  with  broader  structural 
problems relating to citizens’ lack of trust in the judicial system181, limited availability of legal 
aid, the cost of legal proceedings, and the high level of uncertainty about the outcome involved.  

Legal experts have confirmed the continuing relevance of the provisions on ensuring effective 
access to justice182. Nevertheless, legal experts suggest that a number of legal concepts and their 
application could be further clarified, particularly those relating to the burden of proof and the 
concept of equal pay for work of equal value.  

Besides  the  difficulties  in  applying  the  legal  concepts,  the  evaluation  (see  Section  5.1)  also 
highlights  the  difficulty  in  defining  a  meaningful  comparator  to  establish  what  constitutes 
‘work of equal value’, especially in female-dominated sectors and professions. The deep gender 
segregation in Member State labour markets is a core problem that impedes how far EU action 
can ensure equal pay. The problem is further compounded where strong sectoral social dialogue 
is  the  primary  determinant  of  wage-setting  mechanisms  in  individual  sectors,  with  limited 
space for cross-sectoral collective agreements. In such situations, the concepts of equal pay for 
the same work and for work of equal value are only applied within the same type of occupation 
or sector and not across sectors. This has a negative impact on the gender pay gap. As labour 
markets  are  gender-segregated,  a  key  structural  problem  for  the  gender  pay  gap  in  many 
Member  States  is  the  lack  of  comparison  between  the  value  of  work  in  female-dominated 
sectors (e.g. care sectors or education) and the value of work in male-dominated sectors (e.g. 
construction or transport). The evaluation indicates that here the relevance of EU action could 

178 Eurobarometer (2017). 
179 Eurobarometer (2017). 
180 European Commission (2013), Implementation report. 
181  European  Commission,  See  Justice  Scoreboard 
/en/priority/7/7-20.html 
182 Foubert P., The enforcement of the principle of equal pay for equal work or work of equal value A legal analysis of the situation in the EU 
Member States, Iceland, Liechtenstein and Norway, ELLN for the European Commission, 2017. 

(2018),  Figure  31,  http://publications.europa.eu/webpub/com/refit-scoreboard 

51 

 
 
                                                           
be further increased by further improving pay transparency in Member States and by ensuring 
better legal clarity in application of the key legal concepts.   

Limited mandate of national bodies to enforce equal pay measures  
Under  the  Directive,  national  bodies  have  a  role  in  monitoring,  enforcing  and  implementing 
equal pay measures. The evaluation found that in practice, the relevance of this role has been 
hampered by the different mandates and roles those national bodies across the EU have. This 
applies both to national equality bodies and labour inspectorates.  

The  relevance  differs  depending  on  the  specific  mandate  and  context  for  the  work  of  the 
national equality body in the Member State (see Section 5.1.3). The analysis by European legal 
experts  shows  that  there  is  considerable  variation  in  equality  bodies’  competences,  scope  of 
action, resources and degree of specialisation183. 

A common challenge across the Member States is the need to ensure that equality bodies have a 
sufficient  mandate,  have  sufficient  human  and  financial  resources  to  support  victims  of 
discrimination,  and  perform  their  enforcement  duties  effectively  and  efficiently.  The 
Commission  addressed  this  issue  with  a  2018  recommendation  on  standards  for  equality 
bodies184, which set out measures that Member States are invited to apply to help improve the 
equality  bodies’  independence  and  effectiveness.  These  measures  relate  in  particular  to  the 
bodies’ capacity to ensure that individuals and groups that are discriminated against can fully 
enjoy their rights.  

The relevance of EU action to labour inspectorates’ activities is more limited, as in a number of 
countries185 the inspectorates do not have a mandate to intervene in matters related to equal pay 
(see Section 5.1). Where the labour inspectorates do have a formal role, challenges have been 
identified  over  adequate  resourcing,  the  inspectorates’  capacity  to  take  a  proactive  approach, 
and awareness of hidden discrimination among inspectorate staff i.e. gendered preconceptions 
and biased expectations regarding the job in question. In this sense, the Directive’s relevance 
for  the  work  of  the  labour  inspectorates  varies,  as  they  do  not  hold  a  uniform  formal  role  in 
enforcing equal pay provisions. 

5.4. Coherence 

The assessment of coherence considers:  

 

the extent to which the original objectives of EU action mutually reinforce each other or 
whether they include contradictory elements (‘internal coherence’); and  

  how  they  work  together  with  other  actions  at  national,  EU  and  international  level 

(‘external coherence’).  

The assessment looks at coherence in the wider EU action, including existing legislation in the 
area of gender equality and beyond (e.g. EU data protection legislation) and proposals for new 
legislation.  

5.4.1 Internal coherence 

The evaluation assessed the internal coherence of the EU action by looking at how its various 
components operate together to ensure effective implementation of the principle of equal pay. It 

European 

183 Ibid. 
184 
https://ec.europa.eu/info/sites/info/files/2_en_act_part1_v4.pdf. 
185 See Section 3.4.4.2 for supporting sources and analysis. 

Commission, 

Standards 

2018, 

for 

Equality 

Bodies 

C(2018) 

3850 

Final, 

Available 

at: 

52 

 
 
 
                                                           
also tried to identify any elements that contradict one another or pose problems in practice. The 
evaluation considers that lack of clarity of key concepts in the Directive (‘pay’, ‘work of equal 
value’, etc.) is a source of partial incoherence in fully achieving the practical implementation of 
this complex principle at national level and ensuring its legal clarity. In addition, the evaluation 
found  that  a  derogation  in  the  Directive  potentially  accentuates  inequalities  in  the  area  of 
occupational  pensions,  which  generally  fall  within  the  scope  of  Article 157  TFEU.  The 
derogation, laid down in Article 9(1)(h), (j) and (k), relates to the application of equal treatment 
by laying down the possibility for Member States to opt to allow the use of sex as an actuarial 
factor in the calculation of defined-contribution schemes. 

The provisions, aims and objectives of the Directive itself were also assessed as regards their 
coherence  with  those  of  the  Pay  Transparency  Recommendation.  The  Recommendation,  to 
reiterate,  (i)  reaffirms  the  principle  of  equal  pay  for  equal  work  or  work  of  equal  value;  (ii) 
addresses the lack of wage transparency, which prevents awareness of pay discrimination and 
the  gathering  of  sufficient  evidence  for  equal  pay  claims;  and  (iii)  highlights  the  need  to 
promote gender neutral  job evaluation  and classification systems.  The Recommendation aims 
to  reinforce  the  Directive  and  to  provide  a  toolbox  of  pay  transparency  measures  to  help 
national  authorities  step  up  their  efforts  to  eliminate  sources  of  gender-based  pay 
discrimination; it also invites Member States to ensure consistent monitoring and enforcement 
of the implementation of the equal pay principle. Pay transparency measures are shown in this 
context  to  have  the  potential  to  make  employers,  who  may  not  be  aware  of  bias  in  the  pay 
structure,  and  employees  more  aware  of  pay  discrimination.  In  addition,  pay  transparency 
measures can support the implementation of the shared burden of proof in assisting workers to 
determine  the  average  pay  for  women  and  men.  However,  as  the  Recommendation  is  not 
binding,  the  provisions  on  monitoring  and  enforcement  fall  short  of  ensuring  that  concrete 
measures are taken. Nor can it impose appropriate sanctions where the transparency measures 
are not respected.  

The  evaluation  considers 
Recommendation limits the impact and ability of its measures to reinforce the Directive.  

the  non-binding  nature  of 

the  Pay  Transparency 

that 

5.4.2. Coherence with other EU action contributing to gender equality and to a reduction 
in gender discrimination  

This  section  assesses  how  far  the  Directive’s  goals  and  provisions,  as  complemented  by  the 
Recommendation,  are  consistent  with  other  EU  legislation,  including  other  directives  and 
several proposals for directives.   

Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for 
men and women in matters of social security186  
This  Directive  lays  down  provisions  ensuring  implementation  of  the  principle  of  equal 
treatment  between  men  and  women  in  the  field  of  statutory  social  security  schemes.  Overall, 
three  EU  instruments  aim  to  ensure  equal  treatment  in  matters  of  social  security  in  general 
(known as ‘pillars’): Directive 79/7/EEC covers statutory social security (first pillar), while the 
Directive  (i.e.  Directive  2006/54/EC)  covers  occupational  social  security  (second  pillar),  and 
Directive  2004/113/EC  covers  private  insurance  (third  pillar).  Directive  79/7/EEC  and  the 
Directive  regulate  different  areas  of  social  security  and  complement  one  another  in  terms  of 
implementing the principle of equal treatment in social security in general.  

186 OJ L 6, 10.1.1979, p. 24–25. 

53 

 
 
                                                           
The  evaluation  highlights  one  point  of  inconsistency,  which  concerns  equal  treatment  in 
relation  to  defining  old  age  in  retirement  pensions.  Directive  79/7/EEC  explicitly  allows 
Member  States  to  exclude  the  determination  of  pensionable  age  from  its  scope,  at  least 
temporarily. The Directive does not allow such an exemption. 

While Directive 79/7/EEC made the derogation on determination of pensionable age temporary 
and obliges Member States to periodically examine and justify keeping any such derogations, it 
does not contain any time frame for ending the derogation and the Directive has so far never 
been amended187.  

Moreover, and this is very important, the CJEU held in Case C-318/13 (X.) that the use of life 
expectancy  as  an  actuarial  factor  to  calculate  a  statutory  social  security  benefit  is  in  conflict 
with the principle of equal treatment.  

In that case, only statutory social security was at stake. However, the Court had already made a 
similar decision with regard to private insurance schemes188. There is little doubt that the Court 
would reach a similar conclusion with regard to the remaining pillar of social security, i.e. the 
occupational  social  security  pillar  covered  by  the  Directive.  The  coherence  of  the  EU  legal 
system would therefore seem to require that the Directive be brought in line on this point with 
the  legal  situation  under  Directive  79/7/EEC.  This  alignment  should  be  realised  as  soon  as 
possible given the significant impact of the Court’s decisions on the pension schemes, and thus 
on  the  pay,  of  millions  of  citizens,  not  to  mention  the  increasing  relevance  of  this  matter  in 
Europe’s rapidly ageing society.  

Council Directive 92/85/EEC concerning safety and health at work of pregnant workers and 
workers who have recently given birth or are breastfeeding189 
Directive  92/85/EEC  aims  to  ensure  the  protection  of  pregnant  workers  and  young  working 
mothers following the birth of their child or breastfeeding against exposure to health risks and 
dangerous working conditions. Directive 92/85/EEC and the Directive mutually reinforce each 
other  in  the  objective  of  ensuring  equal  treatment  between  women  and  men:  the  Directive 
clearly  acknowledges  (in  recitals  23-25),  in  line  with  CJEU  case-law,  that  any  unfavourable 
treatment  of  women  related  to  pregnancy  or  maternity  constitutes  a  direct  ground  for 
discrimination  on  the  basis  of  sex.  The  Directive  aims  to  ensure  that  maternity  leave 
(Article 15) and parental leave (Article 16) do not have any unfavourable impact on women’s 
pay  or  conditions.  Both  Directive  92/85/EEC  and  the  Directive  lay  down  minimum 
requirements,  leaving  Member  States  room  to  improve  on  these  standards.  Furthermore, 
Directive  92/85/EEC  prohibits  dismissal  on  the  grounds  of  pregnancy  or  maternity  leave 
(Article 10). Both Directives are thus consistent with each other. 

Directive  2004/113/EC  on  the  principle  of  equal  treatment  between  men  and  women  in 
access to and supply of goods and service190 
Directive 2004/113/EC prohibits discrimination based on sex in accessing and supplying goods 
and  services.  Directive  2004/113/EC  has  an  impact  on  the  economic  situation  of  women,  in 
particular  as  regards  access  to  and  supply  of  goods  and  services  relating  to  women’s  health, 
care  services,  insurance  and  pensions,  as  well  as  other  financial  services.  Directive 
2004/113/EC  and  the  Directive  are  mutually  reinforcing  in  that  they  aim  to  protect  against 
discrimination  based  on  sex,  with  one  focused  on  employment  and  the  other  going  beyond 
employment.  

187 For more details see the Commission staff working document on the evaluation of Directive 79/7/EEC, SWD(2019)450 final. 
188 Case 236/09, Test-Achats, see below, in relation to coherence with Directive 2004/113/EC. 
189 OJ L 348, 28.11.1992, p. 1–7. 
190 OJ L 373, 21.12.2004, p. 37–43.  

54 

 
 
 
                                                           
However, similar to  the  inconsistency  highlighted in  regard to  Directive  79/7/EEC, there is  a 
discrepancy  between  the  Directive  and  Directive  2004/113/EC  over  the  calculation  of 
premiums  and  benefits  for  the  purpose  of  insurance  and  related  financial  services.  Directive 
2004/113/EC covers private (third pillar) pension insurance and schemes, thus complementing 
Directive  79/7/EEC  (statutory  (first  pillar)  schemes)  and  the  Directive  (occupational  (second 
pillar)  schemes).  As  a  high  proportion  of  women  work  part-time,  they  may  experience 
problems  in  accessing  private  insurance  and  pension  schemes.  Therefore,  Article 5(1)  of 
Directive  2004/113/EC  precludes  the  use  of  sex  as  an  actuarial  factor  in  the  calculation  of 
premiums  and  benefits  for  the  purpose  of  insurance  and  related  financial  services.  As  in  its 
‘sister’ directives, however, Article 5(2) of Directive 2004/113 allows Member States to permit 
exceptions  to  the rule if  based on relevant  and accurate  actuarial  and statistical  data showing 
that sex is a determining factor in the assessment of risk.  In the Test-Achats case191, the CJEU 
eliminated the use of such exceptions by Member States in third pillar schemes, ruling that such 
exceptions are contrary to the principle of equal  treatment. As a result, while the illegality of 
using  different  actuarial  factors  based  on  sex  has  been  established  for  first  and  third  pillar 
pension schemes, no such finding has been made regarding second pillar  schemes, which are 
covered by the Directive. Therefore, ensuring consistency between the three EU instruments on 
equal  treatment  in  relation  to  pension  insurance  and  schemes  requires  the  alignment  of  the 
relevant provisions of the Directive (see also below).  

Directive 2010/18/EU on the Framework Agreement on parental leave192 
Directive  2010/18  aims  to  ensure  that  workers  are  entitled  to  parental  leave  on  the  birth  or 
adoption of a child. It applies equally to all workers, men and women, irrespective of their type 
of  employment  contract  (open-ended,  fixed-term,  part-time  or  temporary)  and  requires  that  4 
months from parental leave should not be transferable from one parent to the other. In this way, 
it aims to achieve more equal uptake of parental leave by both parents.  
Generally,  both  directives  mutually  reinforce  each  other.  Directive  2010/18/EU  addresses  the 
(structural)  need  to  better  reconcile  work  and  family  responsibilities  to  improve  equality 
between  women  and  men,  as  well  as  women’s  access  to  the  labour  market.  It  thus  seeks  to 
combat gender stereotypes by setting out parental leave rights that encourage fathers to take up 
their leave entitlement.  The results of the 2018  Eurobarometer survey on work-life balance193 
show that only 4 in 10 European men take up paternity leave, while 32% take up parental leave. 
Ensuring  take-up  among  fathers  is  key  to  relieving  women  of  the  burden  of  care.  The  main 
reasons  for  men  not  availing  themselves  of  their  parental  leave  entitlements  are  financial 
reasons and the use of the entitlement by the spouse. The Directive addresses the latter but not 
the former. Directive 2010/18 remains in force until 30 July 2022, when Directive 2019/1158 
will replace it. 

Directive 2019/1158/EU on work-life balance for parents and carers and repealing Directive 
2010/18/EU on parental leave194 
This  Directive  aims  to  modernise the legal  framework on family leaves and flexible working 
arrangements to  improve gender equality  by providing for new measures to  encourage men’s 
uptake  of  such  leave/flexible  working  arrangements  (and  thus  their  engagement  in  family 
responsibilities). It tackles the gender pay gap beyond pay discrimination by addressing one of 
the gap’s key drivers, namely the motherhood penalty and the lack of shared unpaid care work 

191 CJEU Case 236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres ECLI:EU:C:2011:100. 
192 OJ L 68, 18.3.2010, p. 13–20. 
193 http://data.europa.eu/euodp/en/data/dataset/S2185_470_ENG  
194 OJ L 188, 12.7.2019, p. 79–93. 

55 

 
 
 
                                                           
between women and men. It also provides a right to paternity leave of 10 days, compensated at 
the level of sick pay in a Member State, and guarantees an individual right for each worker to 4 
months parental leave, of which 2 months are not transferable and paid at the level determined 
by a Member State. 
The  general  considerations  of  Directives  2019/1158/EU  and  2006/54/EC  are  mutually 
reinforcing. The new Directive refers to the need for work-life balance policies to contribute to 
achieving gender equality and closing the gender pay gap. 

Directive 2010/41/EC on equal  treatment  between men and women in an activity in a self-
employed capacity195  
Directive  2010/41/EC  guarantees  the  principle  of  equal  treatment  between  men  and  women 
engaged in self-employment for aspects not covered by Directives 2006/54/EC and 79/7/EEC. 
The two directives are consistent in that both complement each other in guaranteeing the right 
to equal treatment based on sex in self-employment with respect to: (i) social security schemes 
generally and (ii) occupational social security schemes.  
Considering the scope of the EU action and the entire EU legal framework on gender equality 
mentioned above, one can see a significant gap in the protection of workers as compared to the 
self-employed. Several pieces of EU legislation, especially Directive 2010/41/EC and Directive 
2019/1158/EU, do not apply to self-employed workers. In light of the importance of work-life 
balance policies in reducing the gender pay gap, this different treatment may be considered as 
inconsistency  in  the  overall  EU  legal  framework.  Directive  2019/1158/EU  recognises  this 
problem and requires the Commission to present a study on the rights to family-related leave 
that are granted to the self-employed (see Article 18(2)(b)). 

Directive 97/81/EC concerning the Framework Agreement on part-time work196  
Directive 97/81/EC aims to implement the Framework Agreement on part-time work concluded 
by social partners. The Agreement provides for the removal of discrimination against part-time 
workers,  and  aims  to  improve  the  quality  of  part-time  work,  facilitating  the  development  of 
part-time  work  on  a  voluntary  basis,  and  contributing  to  the  flexible  organisation  of  working 
time  in  a  manner  which  takes  into  account  the  needs  of  employers  and  workers.  As  such,  it 
focuses  on  access  to  employment  and  employment  creation  rather  than  on  combating  sex 
discrimination  in  employment  or  part-time  work,  though  equal  treatment  in  terms  of 
employment  conditions  for  part-time  workers  (including  for  female  workers)  and  non-
discrimination  (Clause  4)  is  the  main  provision  of  the  Directive..  Directive  97/81/EC  could 
potentially play an important role in establishing cases of indirect sex discrimination, as more 
women  generally  work  part-time  than  men.  Nevertheless,  it  appears  that  in  practice,  cases  of 
discrimination  against  female  part-time  workers  are  handled  as  cases  of  sex  discrimination 
rather than cases of discrimination against part-time workers. This shows the importance of EU 
gender equality regulation in making sure that gender equality is incorporated across the board. 
Two  main  instances  of  incoherence  can  be  highlighted:  one  in  relation  to  comparators  and  a 
second  related  to  the  personal  scope.  To  establish  discrimination  between  part-time  and  full-
time work, Directive 97/81/EC  requires  a  comparator in  the same establishment (Clause 4 of 
the Agreement197), while the Directive on the principle of equal treatment refers to a comparator 
in a comparable situation (Article 2(1)(a)). The CJEU has interpreted ‘comparable situation’ as 

195 OJ L 180, 15.7.2010, p. 1–6. 
196 OJ L 14, 20.1.1998, p. 9–14. 
197  The  second  para  of  Clause  3(2)  of  Directive  97/81/EC  establishes  that  where  there  is  no  comparator  in  the  same  establishment,  the 
comparison  should  be  made  by  reference  to  an  applicable  collective  agreement  or,  where  there  is  none,  in  accordance  with  national  law, 
collective agreements, or practice. 

56 

 
 
 
 
                                                           
referring to ‘the same establishment or same service198’. The Court has held that ‘nothing in the 
wording  of  [Article 157  TFEU]  suggest  that  the  applicability  of  that  provision  is  limited  to 
situations  in  which  men  and  women  work  for  the  same  employer’.  However,  the  inequality 
must  be  attributed  to  a  source  which  can  restore  equal  treatment  and  cannot  be  objectively 
justified199.  The  Court  specified  that  the  comparisons  must  be  made  ‘on  the  basis  of  concrete 
appraisals of the work actually performed by employees of different sex’200’ and must take into 
account a number of factors: the nature of the work, the training requirements and the working 
conditions201.  
The personal and material scope of the Directive is broader than that of Directive 97/81/EC as 
it applies to all workers, including the self-employed, and does not allow for the exclusion of 
categories  of  workers.  The  Court  affirmed  in  the  Jenkins  case202  that  a  difference  in  pay 
between full-time workers and part-time workers is not de facto pay discrimination unless it is 
an indirect way of reducing the pay of part-time workers on the grounds that those workers are 
predominantly  women.  Nevertheless,  the  CJEU  has  also  held  that  financial  conditions, 
including remuneration and pensions, fall within the scope of Directive 97/81/EC203. 
Finally,  while  Directive  97/81/EC  aims  to  combat  structural  causes  of  inequality,  it  does  not 
take into account the fact that part-time work can itself be a trap and even a source of inequality 
for  women,  although  the  Directive  encourages  voluntary  part-time  work  and  ensures  non-
discriminatory  working  conditions  in  such  cases.  For  example,  it  does  not  provide  for  firm 
obligations on employers to offer part-time workers equal career opportunities or the option to 
move to full-time employment. As such, Directive 97/81/EC could have an adverse impact on 
gender equality if no accompanying measures are taken to prevent gender-based discrimination. 
This is to some extent remedied by the new Directive 2019/1158/EU on work-life balance for 
parents and carers, which provides for broader rights to request flexible working arrangements. 
Moreover,  another  new  Directive  on  transparent  and  predictable  working  conditions204 
introduces  a  new  right  for  workers  to  request  a  more  predictable  and  secure  form  of 
employment and to receive a reasoned written reply from the employer. 

Proposed  directive  on  improving  the  gender  balance  among  non-executive  directors  of 
companies listed on stock exchanges and related measures205  
Both  the  Directive  and  the  proposed  directive  on  women  on  boards  mutually  reinforce  each 
other and contribute to achieving equal opportunities for women and men in employment and 
access  to  promotion.  The  proposed  directive  aims  to  address  a  phenomenon  known  as  ‘glass 
ceiling’, where women are limited in their upwards progression within an organisation, one of 
the causes of the gender pay gap, as highlighted in the 2017-2019 action plan on the gender pay 
gap. The proposal thus  complements the Directive, aiming for a higher number of women in 
decision-making  positions.  While  the  Directive  prohibits  discrimination  in  employment  and 
occupation,  and  encourages  Member  States  to  adopt  positive  actions,  the  proposed  directive 
requires Member States to take specific positive action to ensure that selection procedures for 

198 CJEU Case 43/75, Gabrielle Defrenne v Sabena. C-320/00 Lawrence ECLI:EU:C:2002:498: the comparator has to be identified in a single 
source (not two different employers), otherwise inequality cannot be restored. 
199 CJEU C-320/00 Lawrence ECLI:EU:C:2002:498. 
200 Case 129/79 Macarthys (1980) ECR 1275 and Case C-200/91 Coloroll Pension Trustees Ltd v Russell (1994) ECR I-4389. 
201 Case C-381/99 Brunnhofer v Bank der Österreichieschen Postsparkasse AG (2001) ECR I-4961 para. 48. 
202  CJEU  Case  96/80  Jenkins  ECLI:EU:C:1981:80; is  fundamental  here,  as  is  a  report  provided  by  the  European  Legal  Network  of  Gender 
Equality Experts, Countouris N. and Freedland, M., The Personal Scope of EU Sex Equality Directives, European Commission, 2012, available 
at: http://ec.europa.eu/justice/gender-equality/document/index_en.htm#h2-7. 
203 See Judgment in Joined Cases C-395/08 and C-396/08 - Istituto nazionale della previdenza sociale (INPS) v Tiziana Bruno and Massimo 

Pettini (C-395/08) and Daniela Lotti and Clara Matteucci (C-396/08), ECLI:EU:C:2010:329.  

204 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions 

in the European Union, OJ L 186, 11.7.2019, p. 105–121. 

205 OJ L 186, 11.7.2019, p. 105-121. 

57 

 
 
 
                                                           
corporate boards are transparent and based on clear criteria such as merit and qualification. A 
higher number of women in corporate management positions would have a significant impact 
on reducing the gender pay gap.  
The reporting obligations set out in Article 5(2) of the proposed Directive require companies to 
report  on  gender  representation  on  their  boards,  distinguishing  between  executive  and  non-
executive directors; these reports should be published in an accessible manner on their website 
and  include  information  on  measures  taken  to  achieve  the  set  objectives.  The  proposed 
directive should have  a  more  general  positive impact  on women’s promotional prospects  and 
on  vertical  segregation,  and  will  reduce  possibilities  for  discrimination  based  on  sex,  and 
consequently the gender pay gap itself. 

Coherence in relation to the use of sex-based actuarial factors following the CJEU case-law 
(Test-Achats206 and C-318/13 (X207) cases) 
The  evaluation  examined  the  coherence  of  the  Directive  with  these  two  rulings  of  the  Court 
interpreting  Directives  2004/113/EC  and  79/7/EEC.  The  relevant  provisions  of  the  Directive, 
Article 9(h) and (j), allow the use in certain circumstances of actuarial calculation factors which 
differ  according  to  sex  and  the  setting  of  different  levels  for  employers’  contributions.  A 
consistent approach would require the use of gender-neutral actuarial factors across all gender 
equality  directives  covering  different  types  of  social  security,  including  in  the  calculation  of 
contributions to occupational pension schemes that form part of what is considered to be ‘pay’. 
In the Test-Achats and X cases, the Court held that the use of sex as a determining factor in the 
assessment of risk for insurance premiums and benefits in other financial services, in regard to 
private  and  statutory  schemes  respectively,  is  contrary  to  the  principle  of  equal  treatment 
between  women  and  men.  However,  matters  related  to  occupational  social  security  schemes, 
i.e.  those  contracted  by  the  employer,  are  not  covered  by  Directives  2004/113/EC  and 
79/7/EEC and are therefore not directly addressed by these two Court rulings. 
The  evaluation  found  that  based  on  these  derogations  allowed  by  the  Directive,  the  use  of 
gender-based  actuarial  factors  is  still  allowed  in  several  Member  States’  legislation  on 
occupational  social  security schemes208. Based on the analysis of these two Court rulings, the 
provisions of the Directive concerned and the impact of the rulings on equal pay, it is clear that 
the  use  of  gender-based  actuarial  factors  would  in  some  cases  lead  to  higher  occupational 
pension  benefits  for  either  men  or  women  (Article 9(1)(h)  of  the  Directive)  or  to  higher 
contributions by employers for men or women (Article 9(1)(j)). In such cases, the use of such 
factors  can  have  a  negative  impact  on  pay  or  lead  to  a  disadvantage  regarding  employment 
costs for either women or men. On that basis, the Directive’s consistency with the Court case-
law is questionable, because the Directive allows for the use of gender-segregated actuarial data 
in setting different levels of benefits or employer’s contributions. It is still possible, according 
to the text of the Directive, to apply and use Article 9(1)(h) or (j), allowing the use of sex as 
grounds  for differential  treatment.  However, if such application or use were to  be  challenged 
before  the  CJEU,  these  provisions  would  most  likely  be  considered  contrary  to  the  equal 
treatment  principle. This  situation creates legal  uncertainty, while having  a significant  impact 
on  the  occupational  pension  schemes,  and  thus  on  the  pay,  of  millions  of  citizens.  The 
evaluation  suggests  that  given  this  issue’s  increasing  relevance  in  Europe’s  rapidly  ageing 
society, the provisions of the Directive at stake should be revised.  

206 CJEU Case 236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres ECLI:EU:C:2011:100. 
207 CJEU Case 318/13, X Case ECLI:EU:C:2014:2133. 
208 This is the case, for instance, in CZ, EL, IT, MT, and the UK. 

58 

 
 
 
 
                                                           
5.4.3 External coherence with wider EU policies  

GDPR 
In  terms  of  wider  EU  policy  in  the  context  of  the  evaluation,  a  key  area  is  data  protection 
legislation. Wages and related information are considered to be personal data under EU law and 
data  protection  legislation  is  sometimes  flagged  as  being  potentially  problematic  or  even 
incompatible with pay transparency measures. The main instrument considered is the General 
Data Protection Regulation (GDPR209).  

The GDPR aims to protect fundamental rights, in particular, the right to protect personal data. 
EU equal pay provisions (particularly in the Recommendation) aim to increase the transparency 
of pay information to identify potential inequalities and guarantee equal pay for the same work 
or work of equal value.  

The Directive and the Recommendation are assessed as being consistent with the GDPR. The 
to  comply  with  data  protection 
Recommendation  explicitly  requires  Member  States 
requirements. The measures proposed in the Recommendation are sufficiently broad, allowing 
Member  States  to  design  national  pay  transparency  measures  in  compliance  with  data 
protection safeguards. 

When it comes to the practical application of pay transparency measures, it is important to bear 
in  mind  the  following:  information  about  an  individual’s  pay  is  ‘personal  data’  as  it  is 
information  relating  to  an  identified  or  identifiable  person  (‘data  subject’).  A  key  aspect  of 
personal  data  is  that  they  can  be  linked  to  an  individual,  either  directly  or  indirectly  (e.g. 
through  the  use  of  additional  information).  Data  protection  rules  in  the  GDPR  only  apply  to 
personal data. Anonymised data, namely information which cannot be traced to an identified or 
identifiable  person,  are  not  personal  data.  Data  protection  rules  do  not  apply  to  anonymous 
information or personal data rendered anonymous. On the other hand, if data cannot be directly 
attributed to an individual, but can be traced back to an individual by means of using a key or 
additional information, the data is considered pseudonymised and is personal data. Therefore, 
pseudonymised data must be processed in accordance with the data protection rules. 

Pay transparency measures that require fully anonymised data to be provided in the gender pay 
gap report or pay audit do not fall within the scope of EU law on protection of personal data. In 
addition, pay transparency measures should put in place safeguards to ensure the data published 
do  not  allow  the  identification  of  a  person,  directly  or  indirectly  (e.g.  not  publishing  pay 
information where a job category has fewer than three people). 

Pay  transparency  measures  that  require  personal  data  or  data  related  to  an  identifiable 
individual to be provided fall within the scope of the GDPR. In such cases, pay transparency 
measures must comply with the GDPR, including the principles laid down in Article 5, namely 
that data is: 

  processed lawfully, fairly and in a transparent manner in relation to the data subject; 
  collected for specified, explicit and legitimate purposes and not processed in a manner 

incompatible with these purposes;  

  adequate,  relevant  and limited to  what  is  needed in  relation  to  the purposes for which 

they are processed; 

209 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard 
to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection 
Regulation), OJ L 119, 4.5.2016, p. 1-88. 

59 

 
 
 
                                                           
  accurate and, where necessary, kept up to date; 
  kept  in  a  form  which  permits  identification  of  data  subjects  for  no  longer  than  is 

necessary;  

  processed in a manner that ensures appropriate security of personal data. 

The GDPR requires the processing of personal data is based on one of the legal grounds set out 
in  its  Article 6(1)  including  i)  where  it  is  necessary  for  compliance  with  a  legal  obligation 
which employers are subject to or ii) where it is necessary for the performance of a task carried 
out  in  the  public  interest  or  in  the  exercise  of  official  authority  vested  in  the  controller.  The 
basis for the processing on these legal grounds must be laid down by EU or national law. The 
CJEU210 has confirmed that EU data protection rules allow for national legislation that requires 
an employer to make employees’ personal data available to the national authority responsible 
for  monitoring  legislation.  This  is  to  allow  the  authority  responsible  to  be  immediately 
consulted, provided that this is necessary for the authority to monitor how legislation is being 
applied.  In  such  cases,  the  processing  must  be  proportionate  to  the  legitimate  aim  pursued. 
Equal pay, as a fundamental EU right, is an area of public interest. The evaluation found that in 
some Member States tackling the gender pay gap has been recognised as a justifiable reason for 
a proportionate interference in the right to privacy211.  
Furthermore,  it  is  possible  to  comply  with  the  Directive  and  the  Recommendation  in 
accordance with data protection legislation. All instruments concerned are therefore coherent. 

5.4.4. External coherence with international obligations and standards  

The  coherence  assessment  aimed  to  reveal  any  major  incoherence  that  could  stem  from 
transposing the international obligations into national law in light of Member State obligations 
resulting from the EU legal framework on equal pay. In this regard, it is important to emphasise 
that Member States have individually adhered to these international obligations and standards. 
They  regularly  submit  implementation  reports,  which  are  evaluated  by  various  international 
bodies. 
A  coherence  assessment  was  carried  out  for  the  following  international  obligations  and 
standards. The result of the analysis of the external coherence with international obligations and 
standards assessment shows that the EU legal framework could be rendered more aligned with 
the international legal framework on some points:  

International Covenant on Civil and Political Rights (ICCPR) (1966) 

The evaluation raises an issue that affects coherence regarding the right to equality before the 
law, which prohibits any form of discrimination, thus providing for effective protection. Under 
EU law, a set of directives address the various grounds of discrimination. This may undermine 
effective  protection  in  cases  of  discrimination  on  multiple  grounds.  Women  from  ethnic 
minorities,  migrant  backgrounds  or  with  disabilities  typically  face  more  discrimination, 
including  inequalities  with  regard  to  pay.  CJEU  case-law  has  restricted  the  use  of  positive 
action where it grants automatic preference to the under-represented gender and where it is not 
proportionate  to  the  policy  aim  to  be  achieved.  This  may  hinder  claims  on  the  basis  of 
intersectional  discrimination  on  multiple  grounds  –  in  situations  when  different  types  of 
discrimination intersect and interact, e.g. gender and ethnic discrimination’. 

210 CJEU, C-342/12, Worten — Equipamentos para o Lar SA v Autoridade para as Condições de Trabalho (ACT), 30 May 2013, para. 45. 
211 See Section 3.3.3.2 of the Study supporting the evaluation. 

60 

 
 
 
                                                           
Convention  on  the  Elimination  of  Discrimination  against  Women  (CEDAW)  (1979)  and 
CEDAW  Committee  General  Recommendation  No 13  on  Equal  Remuneration  for  work  of 
equal value 
The  Convention  and  the  Directive  both  protect  the  right  to  equal  remuneration  and  to  equal 
treatment  as  regards  work  of  equal  value.  However,  CEDAW  sets  out  rights  specifically  for 
women,  while  the  Directive  prohibits  discrimination  on  the  ground  of  sex.  This  is  a 
fundamental  difference,  as  CEDAW  recognises  women  as  the  disadvantaged  sex  that  needs 
additional protection. CEDAW aims to achieve specific results by obliging positive action and 
tackling gender stereotypes in relation to family responsibilities. A key inconsistency identified 
by  the  evaluation  is  that  under  the  Directive,  positive  action  is  set  out  as  the  exception  and 
restricted  by  the  CJEU  case-law212,  under  the  lenses  of  proportionality  and  objective 
justification. This may limit Member States in taking positive action. 
CEDAW’s Recommendation No 13 on equal remuneration for work of equal value recommends 
job  evaluation  systems  based on gender-neutral  criteria be developed and adopted in  order to 
compare  the  value  of  different  types  of  jobs  in  which  women  predominate.  This 
recommendation  has  not  been  taken  up  by  the  Directive,  which  only  specifies  that  job 
classification systems should not be discriminatory. Nor does the Recommendation specify or 
promote the development of job classification systems that can be applied to jobs of a different 
nature. 

ILO  Convention  No 100  concerning  Equal  Remuneration  (1951,  ILO)  and  ILO 
Recommendation, 1951 (No 90) Report III (Part 6B) International Labour Conference (72nd 
Session, Geneva, 1986) 
The Convention’s intention via the ‘work of equal value’ principle is to compare occupations in 
different sectors. However, under EU law, this is does not seem to be strictly the case. There is 
no clear legal basis for such comparisons. While the Lawrence case (C-320/00) stipulated that 
the  comparator  can  be  found  beyond  the  same  establishment,  without  a  job  classification 
system that provides a legal basis for such types of comparison, beyond the sector it may not be 
possible in practice. The Directive does not further define the concept of ‘work of equal value’ 
or codify earlier CJEU case-law interpreting this concept. It merely reflects in its recital 9 the 
factors (nature of the work, training and working conditions) set out by the CJEU case-law in 
order to determine what constitutes work of equal value. While the CJEU case-law is binding 
on Member States, the Directive would be clearer if these factors were specifically included in 
the defined concepts of the instrument.   

The aim of ILO Recommendation No 90 is to ensure that the principle of equal pay for work of 
equal value is applied. It refers to the public sector’s role in setting an example for the private 
sector.  Furthermore,  the  ILO  Recommendation  highlights  the  use  of  job  classification  and 
evaluation  systems  and  the  role  of  social  partners  in  applying  the  principle  of  equal  pay  for 
work of equal value. This ILO Recommendation has not been taken up by either the Directive 
or  the  EU  Recommendation.  The  EU  Recommendation  aims  to  close  this  gap  by  making  a 
similar recommendation to Member States, along the lines of that of the ILO. 

Beijing Platform for Action (1995, UN). F. Women and the Economy, Strategic objective F.5 
‘Eliminate occupational segregation and all forms of employment discrimination’ 
The  Beijing  Platform  for  Action  and  the  EU  action  complement  each  other  in  their  mutually 
reinforcing objectives of eliminating discrimination in employment based on sex. 

Measures to tackle segregation across different occupations or sectors (horizontal segregation) 
were  not  directly  included  in  the  Directive  or  addressed  by  the  Recommendation  due  to  the 

212 See for example, C-407/98 Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist ECR [2000] I-05539. 

61 

 
 
                                                           
restricted  scope  of  the  provision  dealing  with  work  of  equal  value,  which  does  not  allow  for 
cross-sector comparison  under the current  EU legislation on equal  pay. Job classification and 
evaluation systems are not perceived as a tool to tackle gender occupational segregation. This 
should be emphasised if Member States are to consider effective use of these tools. In terms of 
vertical  segregation,  pay  discrimination  provisions  under  the  Recast  Directive  do  not  directly 
address or aim to address this issue. 

Sustainable Development Goals (2015, UNDP), Goal 5: Gender Equality (SDG 5) 
Among others, SDG 5 sets a goal to end all forms of discrimination against women and girls 
everywhere. The EU action is considered to be aligned with this objective providing a different 
range of legal provisions aiming to ensure equal treatment between women and men, including 
the prohibition of pay discrimination. To make the existing provisions of the  EU action more 
effective in order to fulfil the objective set by SDG 5, they need to be complemented by other 
measures  already  discussed  in  this  section  —  such  as  a  work-life  balance  directive  or  the 
proposed directive on gender balance in boards of largest listed companies.  

5.5. EU added value  

Equal pay between men and women is one of the EU’s founding values. The principle that men 
and women should receive equal pay for equal work or work of equal value has been enshrined 
in the European Treaties since 1957213. Although the principle of direct effect enabled women 
to  challenge  discrimination  before  national  courts,  the  Treaty  itself  gave  no  specific  legal 
means  at  national  level  to  fight  wage  discrimination  or  to  tackle  the  gender  pay  gap214.  The 
analysis  of  EU  added  value  looks  at  changes  that  have  been  triggered  by  EU  secondary 
legislation over and above what could have reasonably been expected from the Member States 
and  stakeholders  alone  in  the  implementation  or  the  lack  of  implementation  of  the  Treaty 
principle itself.  

The evaluation points to the EU action’s positive added value, especially in light of the overall 
progress, even if slow, in reducing the gender pay gap. The effectiveness assessment found that 
the unexplained gender pay gap tended to decline in Member States that introduced legislation 
over  2006-2014  more  than  in  those  that  did  not  introduce  legislation.  Member  States  acting 
alone cannot more effectively improve overall EU legislation in this area.  

In  1957,  equal  pay  was  already  considered  as  a  key  element  required  to  harmonise  social 
systems  and  ensure  that  the  internal  market  functioned  properly,  where  companies  could 
compete on a fair  and equal  basis. On their own, Member States cannot  achieve this level  of 
harmonisation  nor  can  they  create  a  level  playing  field  for  companies  in  the  internal  market. 
Member States alone cannot ensure that the Treaty concepts such as ‘pay’ and ‘work of equal 
value’  are  uniformly  applied.  In  addition,  a  well-functioning  labour  market  free  of 
discrimination, including on grounds of sex, is important for promoting labour mobility within 
the  internal  market.  A  coherent  legal  framework  of  equal  treatment  legislation,  ensuring 
uniform  rights  to  equal  pay  for  the  same  work  or  work  of  equal  value  and  with  comparable 
enforcement  mechanisms,  avoids  disparities  between  Member  States  which  would  have  an 
impact on the free movement of workers. This evaluation finds that the EU action has triggered 
action  in  Member  States,  which  otherwise  may  not  have  happened  (see  Section  5.1  on 
effectiveness).  However,  the  evaluation  also  suggests  that  the  EU  action  was  not  enough  in 

213 Today: Article 157(1-2) TFEU. 
214 Van der Vleuten A., The Price of gender Equality. Member States and Governance in the European Union, 2007, p. 54. 

62 

 
 
 
                                                           
many respects: even with the Directive and the Recommendation in place, a wide variation in 
implementation and compliance persists across the Member States. 

The  limited  resources  dedicated  by  the  Member  States  to  implementing  the  Directive,  and  to 
further  following  up  on  the  Recommendation,  contribute  to  persistent  problems  with 
enforcement. In particular, the Recommendation’s value added has been limited, because of its 
non-binding  nature,  despite  triggering  change  in  some  countries  and  bringing  the  matter  of 
equal  pay  and  pay  transparency  more  specifically  to  the  political  scene,  strengthening  policy 
guidance on the implementation of equal pay measures. All this does not put in question the EU 
added  value,  but  poor  and  varied  implementation  in  Member  States  has  failed  to  give  real 
‘teeth’ to equal pay as a legal provision. Not surprisingly only just over a quarter of European 
citizens (26%) believe that equal pay for equal work is guaranteed by law (see Eurobarometer’s 
Figure 8)215. 

The  value  added  of  the  EU  action  also  lies  in  providing  a  clearer,  more  readable  and  more 
accessible  legal  text,  providing  for  legal  certainty  and  coherence.  This  happened  to  a  lesser 
extent than expected. The definitions of ‘pay’, ‘the same work’ and ‘work of equal value’  — 
critical  to  implementing  equal  pay  legislation  and  measures  effectively  —  have  not  been 
sufficiently  clarified  in  the  legislation,  even  if  guidance  from  the  CJEU  exists.  However,  the 
EU  action  did  clarify  roles  and  responsibilities  for  key  players,  particularly  with  respect  to 
promoting  access  to  justice.  For  example,  the  Directive  extended  the  rules  on  the  ‘burden  of 
proof’  to  the  area  of  occupational  social  security  schemes  and  expanded  the  mandate  for 
equality bodies. Yet challenges remain as regards implementing legal provisions, in particular 
when it concerns the burden of proof, calling for further EU action in that field. 

With  15  Member  States  not  yet  adopting  pay  transparency  measures  and  13  Member  States 
adopting  a  range  of  measures  targeting  different  companies  and  establishing  different  legal 
requirements,  there  are  clear  discrepancies  in  regulatory  standards  across  the  EU  which  can 
negatively  affect  the  cross-border  mobility  of  companies  and  prevent  a  level  playing  field. 
Divergences  in  legal  requirements  in  terms  of  pay  transparency  measures  across  the  EU  can 
reduce the attractiveness for companies to move within the EU and set up branches in other EU 
countries  as  they  would  need  to  get  acquainted  with  different  regulatory  standards  and 
reporting mechanisms. It also means that respect for one of the EU’s fundamental rights is not 
uniformly ensured across the EU and EU citizens do not have equal access to justice. 

215 Eurobarometer (2017). 

63 

 
 
                                                           
Table 12. Summary of the EU added value assessment 

 Issue 

Assessment over evaluation period  Areas of need for further EU action 

Promoted Member State 
action in the arena of equal 
pay 

Clarity of legal definitions 

Clarification of roles and 
responsibilities 

15 Member States have not introduced pay 
transparency measures; common barriers in 
implementation across countries 

Member States have transposed the 
Directive; 9 Member States 
introduced transparency measures, 
including 4 which amended their 
existing transparency measures after 
the adoption of the Recommendation, 
4 adopted measures post 2014, with a 
total of 13 Member States having 
such measures in place 

Key concepts have been clarified by 
the CJEU to a large extent but not by 
the legislation 

Key concepts can be clarified based on the case-
law: explicitly codifying the CJEU case-law in 
the Directive  

The implementation of the burden of 
proof is still unclear with the initial 
evidence burden still falling on 
workers 
Mandate given to the equality bodies 
provided wide discretion and diversity 
across Member States with some 
lacking sufficiently strong mandate to 
enforce equal pay rights 

More training and guidance are needed for 
different stakeholders, including labour 
inspectorates, trade unions and judges. 
Labour inspectorates must be given mandate to 
monitor, they must be trained and be given 
sufficient resources. 
Equality bodies to be given adequate resources 
and in some Member States stronger powers to 
enforce equal pay 

Elevated gender equality in 
public consciousness 

Positive evidence related to specific 
national legislation and awareness of 
the gender pay gap more generally, 
yet still lack of awareness on 
individual rights 

Public awareness remains low and could be 
strengthened through media and communication 
campaigns 

Facilitate cross-mobility of 
companies with common pay 
transparency rules and 
safeguard the level playing 
field across the EU 

13 Member States adopted pay 
transparency measures, but the 
measures adopted widely differ across 
Member States, leading to various 
requirements across the EU 

15 Member States have not introduced pay 
transparency measures, which decreases the level 
playing field across the EU and discrepancies in 
regulatory standards do not facilitate cross-border 
mobility of companies within the EU 

6.  CONCLUSIONS 

This  evaluation  assesses  the  EU’s  legal  framework  on  equal  pay,  in  particular  the  progress 
made  in  improving  the  implementation  of  the  ‘equal  pay  principle’  enshrined  in  the  Treaties 
since 1957, including: 

 
 
 

its enforcement; 
the protection of victims of gender-based pay discrimination; and 
its contribution to ensuring men and women are treated equally. 

It  has  been  carried  out  in  accordance  with  the  Better  Regulation  Guidelines  and  its  five 
evaluation criteria. A wide range of findings have been generated from primary and secondary 
data collection and analysis. The key sources of data and information include an extensive desk 
review  of  EU  and  Member  State  sources,  interviews  with  relevant  stakeholders,  a  public 
consultation  and  an  original  gender  pay  gap  decomposition  analysis  of  the  Structure  of 
Earnings  Survey.  The  evaluation  confirms  that  while  the  legal  framework  has  triggered 
significant  change  at  national  level,  its  effectiveness  has  been  hampered  by  several  factors 
which result in Member States continuing to face challenges in implementing the principle of 
equal pay effectively. 

Regarding  effectiveness,  the  evaluation  has  found  that  some  progress  has  been  made  in 
achieving the EU action’s objectives to prevent pay discrimination and achieve equality in pay 

64 

 
 
 
 
between  women  and  men.  Progress  was  also  made  in  other  key  labour  market  and  social 
inclusion  indicators,  i.e.  elderly  poverty,  female  labour  market  participation  and  employment 
rates. However, the extent to which these trends can be attributed to the EU action cannot be 
assessed  with  certainty  given  the  confounding  impact  of  other  social  and  economic  trends  as 
well as other legislative measures. 

The  elements  which  have  contributed  most  to  the  objectives  are  job  classification  and 
evaluation,  as  well  as  sufficiently  dissuasive  compensation  and  penalties.  On  the  other  hand, 
the effectiveness of the legal framework is hampered by the lack of clarity and awareness of the 
concept of equal pay for equal work and work of equal value. Progress in access to justice has 
been hindered by several challenges, the most common being the application of the burden of 
proof and the establishment of a prima facie case of pay discrimination.  

The issuance of the Pay Transparency Recommendation in 2014 triggered some Member States 
to adopt or amend legislation on pay transparency. While it is too soon to assess their higher-
level impacts, the experience of Member States that adopted measures before 2014 as well as 
the opinions of stakeholders provide significant evidence for a range of impacts including: 

  an improved workforce participation and retention; 
  strengthened career progression for women; and 
 

the  issue  of  equal  pay  being  elevated  as  regards  public  awareness  and  the  political 
agenda.  

The  experiences  of  the  UK  and  France  with  pay  transparency  measures  also  suggest  that  the 
threat  to  the  reputational  capital  of  businesses  can  be  effective  in  ensuring  compliance  and 
follow-up actions, sometimes even more so than penalties. 

The  assessment  of  efficiency  was  based  on  the  analyse  of  costs  and  benefits,  quantifiable  or 
intangible,  triggered  by  the  EU  action  for  three  main  categories  of  players:  Member  States, 
business and individuals/trade unions in the short-term and long-term and they can be.  

As to  costs, the efficiency assessment  found no evidence of significant  administrative burden 
linked to the EU provisions. It suggests that the better enforcement of equal pay — one of the 
EU  fundamental  rights  —  can  be  achieved  at  a  reasonable  cost.  Even  though,  the  costs  for 
companies would differ between Member States, depending on the scope of the implementing 
measure, they would in principle be limited, even in the case of the most burdensome measures 
such as pay audits. For individuals, besides judicial costs in the case of litigation (the costs of 
filing  a  pay  discrimination  complaint),  other  significant  potential  costs  were  identified  in  the 
case of pay transparency measures. The latter would potentially lead to lower wage growth due 
to wage compression (i.e. lower and higher wages tending toward one another) and have in turn  
have negative effects  at the system level (e.g. in  terms of potentially lower tax revenue). The 
evaluation’s  findings  suggest  however  that  these  may  be  negligible  and  are  likely  to  be 
overcome by the benefits of the EU action in the longer term.  

As to the benefits, the analysis compares the magnitude of short-term costs for business to the 
potential long-term benefits from closing the gender pay gap. These simple computations show 
that  the  benefits  in  terms  of  higher  female  earnings  from  closing  the  gender  pay  gap  would 
outweigh  any  possible  costs  incurred  by  employers  and  Member  States  in  a  relatively  short 
period of time (2 weeks in our rough calculations).   

The  evaluation  further  identifies  significant  intangible  costs  and  benefits  associated  with  the 
EU  action.  For  individuals,  there  is  the  possible  cost  of  being  stigmatised  when  filing  a  pay 
discrimination  complaint and the risk of retaliation from  the employer’s  side. For businesses, 
the  intangible  costs  can  result  from  possible  disgruntlement  (and  hence  lower  productivity) 

65 

 
 
from  the  workers’  side  in  case  large  wage  differences  are  revealed.  On  the  other  hand, 
intangible  benefits  are  associated  with  i) improved  reputation  from  ensuring  equal  pay, 
ii) potential  improvements  in  talent  attraction  and  retention,  and  iii)  the  potentially  higher 
worker motivation (and productivity) stemming from workers who feel that they are working in 
a fairer environment and that they are being fairly remunerated. Furthermore, costs and benefits 
for  both  individuals  and  employers  are  related  to  reduced  negotiating  power  during  wage 
bargaining,  as  equal  pay  might  affect  the  possibility  for  both  employers  and  employees  to 
bargain wages if considered in comparison with other employees carrying out the same work or 
work of equal value. For Member States, intangible benefits in the long run are related to i) the 
increased  feeling  of  social  justice  and  equality  among  the  population,  ii) the  increased 
awareness of the importance of and rights/obligations related to equal pay, and iii) a stimulated 
political and social debate on gender equality more generally.  

On relevance, the evaluation finds the EU action to be relevant given the lower  hourly wage 
evident among women as compared with men when the EU action was introduced, which, to a 
large  extent,  cannot  be  explained  by  observable  factors.  The  evidence  and  opinion  of 
stakeholders  confirm  that  the  Directive  strengthened  key  legal  provisions  that  existed  before 
2006 and added greater clarity in areas where it was needed such as the burden of proof. The 
adoption of the Recommendation in 2014 has boosted the relevance of measures at EU level by 
targeting  the  lack  of  transparency  as  regards  pay  —  a  key  barrier  to  implementing  rules  on 
equal  pay.  The  relevance  has  also  been  boosted  thanks  to  external  trends  such  as  i)  the 
increasing labour force participation of women, ii) the greater awareness and political attention 
given  to  gender  equality,  and  iii)  the  development  of  other  legislative  and  policy  measures 
which tackle root causes of the gender pay gap. 

The  relevance  of  the  EU  action  has  been  limited  by  its  limited  scope  with  respect  to  the 
‘problem drivers’ of the gender pay gap as it does not directly address occupational segregation 
and the constraints faced mostly by women due to care responsibilities (the ‘care penalty’).  

The EU action is found to be only  partially coherent in the area of equal treatment between 
men and women. In particular, CJEU case-law is not reflected in the definition of ‘equal pay 
for  work  of  equal  value’  in  the  Directive.  This  has  resulted  in  the  concept  not  being  applied 
effectively  in  the  Member  States.  Furthermore,  other  sources  of  gender-based  discrimination 
are not sufficiently accounted for in the EU action (e.g. gender segregation in the labour market 
and  the  part-time  work  trap).  Another  key  shortcoming  is  that  it  is  possible  to  use  gender-
specific actuarial factors in occupational social security schemes. This is not consistent with the 
recent  CJEU  approach  taken  in  relation  to  statutory  social  security  and  financial  services, 
including individual supplementary social security schemes — to prohibit reference to gender 
in actuarial factors for the calculation of contributions. Separately, the EU action was found to 
be coherent with EU and national policies on data protection as they do not limit the collection 
and processing of pay information in order to monitor how the legal obligations of the principle 
of  equal  pay  for  work  of  equal  value  are  applied.  The  EU  action  was  also  found  to  be 
consistent with the international obligations and standards. It is also consistent with a number 
of  important  areas  not  extensively  covered  by  EU  legislation,  especially  in  relation  to  i) 
positive action, ii) the concept of work of equal value and iii) the use of comparators and job 
evaluation  and  classification  systems  to  compare  the  value  of  different  job  areas  including 
those  in  which  women  predominate.  The  latter  area  contributes  to  a  lack  of  opportunity  to 
increase  the  mutually  reinforcing  effect  of  these  instruments.  With  EU  law  having  stronger 
enforcement  mechanisms  than  those  in  international  law,  this  is  a  missed  opportunity  for  the 
EU to reinforce those international standards related to positive action and the concept of work 
of equal value.  

66 

 
 
As  regards  implementing  the  principle  of  equal  pay,  the  evaluation  confirms  the  Directive’s 
clear EU added value. The Directive triggered actions to promote equal pay in Member States 
that would otherwise likely  not  have occurred. Similarly, EU added value is  attributed to  the 
Recommendation. However, the added value of these actions was limited to a large extent by 
insufficient  and  varied  implementation  (especially  since  the  Recommendation  is  not  legally 
binding)  and  because  the  Directive  integrated  previous  directives  with  new  elements.  The 
added  value  of  the  Directive  has  been  hampered  by  the  lack  of  clarification  of  the  key  legal 
concepts  that  are  central  to  implementing  equal  pay  measures,  particularly  for  employers, 
employees and the courts. As one of the EU action’s main objectives is improving legal clarity, 
the EU added value in clarifying the notion of equal pay for the same work or work of equal 
value has proved to be particularly limited, as the research reveals that the notion still remains 
problematic  in  22  Member  States.  There  is  a  similarly  problematic  situation  with  regard  to 
applying the burden of proof for which the provision is not sufficiently clear, leaving it to the 
courts to decide the level of required evidence. 

Studies  from  Sweden  and  Denmark  present  evidence  which  suggests  that  transparency 
measures (adopted prior to the Recommendation) are effective, highlighting that EU action in 
that area has the potential to yield results. These findings are bolstered by stakeholder opinions 
on  the  potential  benefits  of  the  EU  action.  There  is  scope  for  the  EU  action  to  have  further 
added value in the area of pay transparency, given the persistent high level of the gender pay 
gap.  In  particular,  the  EU  action  can  clarify  key  legal  definitions,  at  a  minimum  reflecting 
explicitly  CJEU  case-law  and  guiding  the  application  of  the  concepts,  and  promoting 
coordination  across  the  Member  States  with  respect  to  implementing  equal  pay  measures 
effectively.  A  social  and  economic  case  can  be  made  for  implementing  pay  transparency 
measures effectively. 

Further EU action on other key drivers of the gender pay gap, particularly those related to the 
workplace, may offer synergies with the Directive and pay transparency measures. One of these 
actions  where  such  synergies  may  be  generated  is  the  recent  adoption  of  Directive 
2019/1158/EU on work-life balance for working parents and carers216. 
A  number  of  lessons  emerged  from  the  evaluation,  reflecting  further  needs  for  better 
implementation of the principle of equal pay.  

1.  The need to clarify how to apply and use some existing legal concepts:  

Existing legal concepts such as ‘pay’, ‘equal/same work’ ‘work of equal value’ are not 
defined uniformly across national legislation and require facts to be assessed which can 
be complex. It  is  not always easy to  determine what  counts as equal  work or work of 
equal value. This deters victims of pay discrimination from bringing claims and makes 
running  a  claim  more  complex  for  litigants  and  courts.  Therefore,  stronger  clarity  on 
how to interpret and apply the existing concepts could be helpful. 

2.  The  need  to  better  define  a  mandate  and  increase  resources  of  monitoring  bodies 
(e.g. equality bodies and labour inspectorates) in terms of their formal role in enforcing 
equal  pay provisions  —  to  enable them to issue  an opinion or to  take a  decision on a 
case or to bring a case to court. 

3.  The  need  for  a  minimum  level  of  fines  and  compensation  in  cases  of  gender-based 

pay discrimination. 

4.  The  need  to  promote  awareness  of  rights  to  redress  which  would  increase  the 

incentive for victims to seek access to justice. 

216 Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers and 
repealing Council Directive 2010/18/EU, OJ L 188, 12.7.2019. 

67 

 
 
                                                           
5.  The need to improve the practical application of the reversed burden of proof. This 
can be improved by clarifying the level of evidence required to reach the threshold of 
presumption of discrimination or by strengthening of the Directive’s provisions on the 
burden  of  proof;  pay  transparency  measures  can  also  potentially  support  the 
implementation  of  the  reversed  burden  of  proof  by  enabling  workers  to  provide 
evidence from which discrimination can be presumed. 

6.  The  need  to  promote  the  use  of  gender-neutral  job  classifications/evaluations  in 
Member States, in addition to requiring equal treatment of women and men where a job 
classification system is in place.  

7.  The need to ensure gender neutrality in terms of the actuarial factors used to calculate 

contributions and benefits in occupational social security schemes. 

8.  The  need  to  promote  training  and  the  exchange  of  good  practices  on  building 
gender-based pay discrimination cases; this could promote access to justice, and could 
build on existing examples such as the handbook developed by the European Network 
of Equality Bodies (Equinet) that provides concrete insights into how to build a case on 
equal pay217. 

9.  The  need  to  ensure pay transparency  measures are better implemented across the 

EU, which would spur more widespread action and higher compliance. 

10. The  need  to  promote  data  collection  and  research  on  the  impacts  of  policies  that 
promote the application  of the equal  pay  principle,  in  particular  counterfactual impact 
evaluation studies that assess the higher-level impacts.  

Addressing these needs would potentially strengthen the implementation of the ‘principle of 
equal pay for equal work’ in the EU. Therefore, it is important to recall the opinion adopted 
on 19 April  2018 by the European Economic  and Social Committee, which supported the 
idea  of  a  proposal  to  introduce  pay  transparency  and  pay  audits  in  order  to  facilitate  the 
collection  of  individualised  data  and  to  develop  appropriate  action  plans  at  sector  and 
business level218. 

217 Equinet, How to build a case on equal pay. An Equinet Handbook, 2017. 
218 https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/eu-action-plan-2017-2019-tackling-gender-pay-gap. 

68 

 
 
 
 
                                                           
ANNEXES 

69 

 
 
Annex 1 — Procedural information concerning the process to prepare the 
evaluation  

Organisation and timing 

The  evaluation  took  place  between  October  2018  and  July  2019,  following  the  commitment 
established  in  the  EU  Action  Plan  2017-2019  —  Tackling  the  Gender  Pay  Gap219.  In  the  REFIT 
Scoreboard,  under  ‘Equal  Pay  for  women  and  men’220  the  Commission  also  indicated  that  it  will 
evaluate the Directive. 

The evaluation was carried out by Unit D2 (Gender Equality) of DG Justice and Consumers (DG 
JUST) of the European Commission. This was done in cooperation with other Commission DGs in 
the context of the Inter-Service Steering Group (ISSG) convened by DG JUST. The following DGs 
participated in the steering  group: DG CNECT, DG EAC, DG ECFIN, DG  EMPL, DG ESTAT, 
DG GROW, DG HOME, DG JUST, DG MARE, DG MOVE, DG RTD, DG SANTE, together 
with the Secretariat-General and the Legal Service. During the first meeting on 26 July 2018 the 
ISSG  discussed  the  following  items:  the  aim  of  the  evaluation;  the  draft  Terms  of  Reference 
and the draft consultation strategy.  
In the later stages ISSG members were communicated to in writing on the following: 

  draft public consultation questionnaire sent for comments on 9 November 2018; 
  draft inception report sent for comments on 14 November 2018; 
  draft interim report circulated for comments on 8 May 2019; 
  draft final report circulated for comments on 24 June 2019; 
  meeting of the ISSG to discuss draft final report took place on 28 June 2019;  
 
  draft SWD discussed by ISSG on 5 September 2019;  
  draft SWD submitted to Interservice consultation on 27 January 2020. 

final Report approved by the ISSG on 5 September 2019; 

Evidence used  

Study to support the evaluation of the relevant EU equal pay and related provisions 

ICF was  commissioned to carry out  a study in  October 2018 (referred to  in  this SWD as the 
‘Support study’). The study aimed at  gathering all the available  evidence that would help the 
Commission DGs assess the Directive on the basis of the 5 REFIT criteria. The support study 
included extensive data gathering on how Member State applied equal pay provisions. The data 
were  gathered  through  a  range  of  approaches:  desk  and  national  research,  data  analysis, 
including the decomposition analysis of the Structure of Earning Survey (SES) microdata, and 
targeted consultation with various national and EU experts and stakeholders. 

Structure of Earnings Survey (SES) analysis 

As  a  part  of  the  evaluation  conducted  by  ICF,  the  analysis  was  built  on  a  Eurostat  statistical 
working paper (SWP221) by applying a consistent methodology to analyse the unadjusted gender 

219 European Commission (2017a), Communication EU Action Plan 2017-2019. Tackling the gender pay gap, COM(2017) 678 final. 
220 http://publications.europa.eu/webpub/com/refit-scoreboard/en/priority/7/7-20.html 
221 The SWPs’ collection is used to publish innovative methodological work to inform and stimulate discussions among statisticians. Therefore, 
the data and statistics in SWPs should be considered as work in progress. 

70 

 
 
 
 
 
 
 
                                                           
pay  gap  across  time  looking  at  microdata  from  SES  2006,  SES  2010  and  SES  2014.  The 
analysis  could  not  include  data  for  SES  2018  because,  despite  the  fieldwork  having  been 
completed,  microdata  for  SES  2018  have  not  yet  been  released  at  the  time  of  the  evaluation 
process. 

Stakeholder seminar 

On  7 May  2019,  a  stakeholder  seminar  was  organised  by  DG  JUST  (conducted  by  the 
contractor),  which  aimed  to  stimulate  and  support  a  dialogue  with  and  among  the  social 
partners about the role, costs and benefits of pay transparency measures in reducing the gender 
pay  gap.  It  aimed  to  encourage  the  European  Commission  and  the  social  partners  to  explore 
together  possible  further  steps  to  reduce  the  gender  pay  gap.  The  seminar  was  attended  by 
representatives of the social partners from various levels. 

Targeted consultation survey 

This  stakeholder  survey  (steered  by  the  ICF)  took  place  up  until  21 May  2019  and  aimed  to 
support  the  evaluation  and  to  gather  national  practices  in  implementing  the  equal  pay 
provisions. 

Mutual learning seminar 

On  27-28 May  2019  a  mutual  learning  seminar  took  place  in  Iceland.  It  was  attended  by 
national  representatives  and  experts  from  15  EU  Member  States,  and  discussed  the  Icelandic 
pay  certification  model.  This  model  requires  formal  written  procedures  so  that  all  salary 
decisions are justified. It involves a job classification and ranking system, with each cluster of 
jobs of equal or same value given the same monetary value. There was an in-depth discussion 
about how other countries are addressing the gender pay gap from a structural perspective and 
the extent to which the Icelandic pay certification model could be transferable. 

Online discussion 

An online discussion was held on 11 June 2019 to review the draft recommendations stemming 
from the support study. In total, 35 legal and policy experts in the field of gender equality were 
invited to join. Of these, 10 accepted and joined the discussion, which lasted 2 hours. The table 
below lists the participants and their affiliation.  

Name 
Jill Rubery 
Ewa Rumińska-Zimny 
Chantal Remery 
Linda Senden 
Susanne Burri 
Yuliya Kosyakova 
Katarzyna Wilkolaska 
Cristina Castellanos 
Manuela Samek Lodovici  

Member State 
Affiliation 
UK 
University of Manchester 
PL 
Warsaw School of Economics 
NL 
Utrecht University 
NL 
Utrecht University 
NL 
Utrecht University 
DE 
Institute for Employment Research 
Equinet Secretariat 
BE 
Universidad National de Educacion a Distancia (UNED)  ES 
IT 
Istituto per la Ricerca Sociale 

The online discussion was hosted and moderated by ICF via the GetResponse platform222. The 
participants  underscored  the  need  to  review  the  structure  and  logic  of  recommendations.  The 

222 https://www.getresponse.co.uk/ 

71 

 
 
 
                                                           
participants also raised the issue of what pay transparency actually means in practice and how 
this can counteract the drivers of the gender pay gap. Specifically, they commented that actual 
pay transparency is low, even in countries with pay transparency legislation (and measures) in 
place. 

Public consultation 

A public consultation on the EU legal provisions implementing the principle of equal pay was 
undertaken on the EU Survey website from 11 January 2019 until 5 April 2019. All interested 
stakeholders,  experts,  academics  as  well  as  citizens  were  invited  to  contribute.  The  online 
questionnaire covered both the evaluation on how the current Directive is being implemented 
and the problems, objectives and possible options for the future (see Annex_2 for more details). 
With  several  targeted  actions,  the  Commission  made  stakeholders  aware  of  the  public  online 
consultation.  In  accordance  with  the  Better  Regulation  Guidelines,  the  questionnaire  was 
available in all EU languages and attracted 386 responses and additional 16 position papers. 

An initial summary report of the findings was published on 7 August 2019, and the full report 
of all stakeholder consultations undertaken for the evaluation can be found in Annex 5.  

Literature review  

Apart  from  all  the  available  academic  literature  on  the  subject  of  the  evaluation,  a  series  of 
documents that the Commission previously produced or commissioned were important sources 
of information and insights of this evaluation.  

72 

 
 
 
 
 
Annex 2 — Synthesis of stakeholders consultation activities 

This  annex offers a brief overview of the data-gathering process,  elaborating on the different 
types of measures used to consult stakeholders. 

Following the Better Regulation Guidelines, opinions from a wide range of stakeholders were 
gathered through: 

  a public consultation; 
  a  targeted  consultation  survey  and  semi-structured  interviews  with  representatives  of 
national  equality  bodies,  relevant  ministries,  trade  unions,  employers’  representatives 
and labour inspectorates; and 
through a survey targeting social partners, NGOs and experts. 

 

At the end of the evaluation, an online discussion was held which provided for discussion with 
selected experts from different Member States. 

Table 1. Overview of stakeholder consultation activities 

Consultation activity 

Number of people 
reached 

Types of stakeholder group reached 

l
e
v
e
l
-

U
E

s
r
e
d
l
o
h
e
k
a
t
s

 

 

l
a
n
o
i
t
a
N

s
e
i
t
i
r
o
h
t
u
a

s
n
e
z
i
t
i

C

s
e
s
s
e
n
i
s
u
B

s
O
G
N

s
n
o
i
n
u

e
d
a
r
T

s
t
r
e
p
x
E

 

 

 

     

 

   

 

 

   

 

 

Scoping interviews 

9 

Public consultation 

Targeted stakeholder 
survey 

Semi-structured 
interviews 

Online discussion with 
experts 

Public consultation on 
future gender equality in 
the EU 

386 replies & 16 
position papers 

72 replies 

128 

10  

1,335 replies 

 

 

     

 

 

Each activity had a specific purpose  and objective. For example, the scoping interviews with 
EU-level stakeholders served to kick-start the evaluation by identifying additional literature for 
the desk research. The public consultation provided the opportunity for all types of stakeholders 
to give opinions and views that were triangulated with other sources to support the assessments 
of  all  five  evaluation  criteria  (relevance,  coherence,  effectiveness,  efficiency  and  EU  added 
value).  A  targeted  stakeholder  survey  and  semi-structured  interviews  were  carried  out  with 
national stakeholders to complement the desk research in preparing the country fiche and to fill 
in  key  gaps.  Furthermore,  an  online  discussion  was  organised  with  a  selection  of  experts  on 
equal pay in order to review the preliminary conclusions and recommendations 

73 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Semi-structured interviews 

The ICF team carried out a total of 128 interviews with national stakeholders (for each country 
the  expert  contacted  the  equality  body,  labour  inspectorate,  relevant  ministry,  an  employers’ 
representative  and  a  trade  union  representative),  while  an  additional  10  interviews  were 
organised  with  EU-level  stakeholders.  The  people  interviewed  helped  to  identify  additional 
literature  for  the  desk  research.  Information  gathered  through  the  national  interviews  was 
subsequently integrated into the ‘country fiches’. 

Targeted consultation survey  

Compared  to  the  public  consultation,  the  targeted  consultation  survey  included  more  detailed 
questions  and  more  opportunities  for  open  responses.  Both  were  structured  according  to  the 
five evaluation criteria. It received 72 replies from national stakeholders in all Member States, 
with  more  than  half  coming  from  employer  representatives  and  trade  unions.  Similar  to  the 
public consultation, equality bodies and ministries provided comparatively fewer responses to 
the  survey,  as  they  were  targeted  more  through  the  interviews  rather  than  through  this 
consultation.  

Public consultation  

The European Commission’s action plan 2017-2019:  Tackling the gender pay  gap223 included 
an assessment the possibility of making targeted amendments to Directive 2006/54/EC (Gender 
Equality Recast Directive), to ensure the principle of equal pay for work of equal value is better 
enforced in practice. 

In this context, the Commission launched an online public consultation to gather the views of 
European citizens, stakeholders and Member States on how the relevant provisions of Directive 
2006/54/EC  are  applied  and  enforced.  More  specifically,  the  public  consultation  gathered 
stakeholder opinions on the relevance, efficiency, effectiveness, coherence and EU added value 
of  the  legislation  to  feed  into  the  overall  evaluation.  The  public  consultation  featured  mostly 
closed-response  questions,  with  an  option  to  provide  further  information.  The  Commission’s 
minimum standards for public consultations were all met. 

The consultation  opened on the  Commission’s ‘Have Your Say’ portal224 on 11 January 2019 
and ended on 5 April 2019. In total, 386 replies and 16 position papers225 were received. This 
report  summarises  the  results  of  the  public  consultation  on  equal  pay  and  gives  a  qualitative 
analytical overview of these results. 

Overview of respondents 

The  386  respondents  indicated  that  they  were  replying  as:  an  ‘EU  citizen’,  a  ‘business 
association’,  a  ‘company/business  organisation’,  a  ‘trade  union’,  a  ‘non-governmental 
organisation (NGO)’, ‘other’, a ‘public authority’, an ‘academic/research institution’ or a ‘non-
EU citizen’.  

Most  replies  were  from  individual  EU  citizens  (60%  of  all  responses).  The  consultation  also 
gathered input from business associations (10%), companies/business organisations (8%), trade 
unions  (6%)  and  NGOs  (6%).  Despite  the  Commission’s  efforts  to  promote  the  public 

223http://ec.europa.eu/newsroom/just/document.cfm?action=display&doc_id=48360. 
224https://ec.europa.eu/info/law/better-regulation/initiatives/ares-2018-3415794_en. 
225For further detail, see chapter 5. 

74 

 
 
 
                                                           
consultation  via  permanent  representations  to  the  EU,  the  number  of  public  authorities  that 
responded  was  relatively  low  (6%).  So  was  the  number  of  responses  from  academic/research 
organisations (2%) and ‘other’ (2%). 

Overall, responses were received from across all Member States and from 11 non-EU countries 
(4%).  The  largest  proportion  came  from  Germany  (23%)  followed  by  Spain  (12%)  and  Italy 
(10%). Other countries for which the number of replies represented more than 5% of the total 
included Belgium (7%), France (5%) and Hungary (5%). The level of response was low from 
several Member States most notably Bulgaria, Croatia, Czechia, Estonia, Latvia, Slovakia and 
the United Kingdom226.  

Methodology and limitations 

The  public  consultation  questionnaire  was  composed  of  16  questions,  divided  into  a  general 
part (considering different sectors, the implementation of the Gender Equality Recast Directive 
and the EU Pay Transparency Recommendation, national measures, progress and challenges), a 
part concerning pay transparency (benefits, drawbacks and costs of national pay transparency 
measures), and a third part about enforcement measures and protection of victims of gender pay 
discrimination.  

Respondents were invited to provide their opinion on: 

 

the  different  aspects  of  the  implementation  of  the  EU  legal  framework  on  equal  pay, 
including the Gender Equality Recast Directive and the Commission Pay Transparency 
Recommendation; 
the effectiveness of national measures; 

 
  progress made over the past 10 years (since the Directive was implemented by Member 

States); and 
the remaining obstacles.  

 

In addition, they could provide open responses to any of the questions. 

The  evaluation  team  carried  out  an  overall  assessment  of  each  question  and  a  review  of 
differences by stakeholder groups such as EU citizens, organisations representing employers227 
and  organisations  representing  individuals228.  The  sample  size  for  research  institutions  and 
public authorities were not sufficiently large to be analysed separately. 

Responses  were  screened  for  duplicates.  Though  no  multiple  replies  from  the  same  email 
address were received, the screening showed that 20 German respondents had identical replies 
to several, though not all, of the survey questions, suggesting a coordination campaign among 
business  associations  in  Germany.  Given  their  low  number  relative  to  the  overall  sample  of 
responses  (20  out  of  386,  i.e.  5%)  these  replies  did  not  skew  the  overall  results,  but  it  is 
important to highlight that they certainly influenced the results related to business associations 
(20 out of 38, i.e. 50%). 

Outcome of replies 

While 44% of all respondents (171 out of 386) feel that men and women are not paid equally 
for  the  same  work  or  work  of  equal  value  in  their  countries,  significant  differences  emerge 

226In each of these countries, less than five responses in total were received. 
227 ‘company/business organisation’ and ‘business association’ were grouped together, referred to as ‘companies 
and businesses’. 
228 ‘trade union’ and ‘NGOs’ were grouped together, referred to as ‘trade unions and NGOs’. 

75 

 
 
                                                           
when  analysing  the  results  by  stakeholder  groups,  which  are  presented  in  the  following  part. 
The  structure  of  this  section  is  ordered  by  stakeholder  position  and  follows  roughly  the 
structure of the survey.  

Companies and businesses 

Companies  and  businesses  were  substantially  less  likely  to  consider  equal  pay  an  issue 
compared to  EU citizens and trade unions/NGOs. Only 3% of companies and businesses feel 
that  men  and  women  are  not  paid  equally  for  the  same  work  or  work  of  equal  value  in  their 
countries.  This  divergence  extends  to  opinions  on  the  benefits  of  pay  transparency,  views  on 
the effectiveness of measures that could encourage victims of gender-related pay discrimination 
to seek redress and the effectiveness of measures in the private sector. 

General part 

On the effectiveness of the implementation of the equal pay principle, which overall is viewed 
as especially low in the private sector (30% of respondents responded with ‘very ineffective’), 
it  turns  out  that  a  majority  of  companies  instead  view  the  implementation  as  effective  in  the 
private sector. 

Accordingly,  if  one  compares  the  opinion  of  EU  citizens  with  those  of  companies  and 
businesses  on  the  obstacles  to  effective  implementation  of  the  equal  pay  principle,  the  latter 
were  far  more  likely  to  disagree  with  the  obstacles  listed  in  the  survey.  The  most  obvious 
difference  between  stakeholder  positions  concerns  the  lack  of  dissuasive  penalties  for 
employers,  a  point  on  which  EU  citizens  were  twice  as  likely  to  agree  as  companies  and 
businesses. 

Looking more closely  at  the evaluation  of  the effectiveness  of the individual measures, with 
respect to access to information on pay levels, companies and businesses were more likely to 
report that private sector measures were  effective. The same result could  be observed for the 
promotion of social partner dialogue and enforceable rules on equal pay, which were also twice 
as  often  considered  as  effective  by  companies  and  businesses  compared  to  EU  citizens  and 
trade unions and NGOs.  

On the effectiveness of measures to ensure protection of a worker claiming enforcement of 
his/her rights to equal pay, companies and businesses were far more likely to state that certain 
measures were effective, for example, the reversed burden of proof on employers (see  Figure 
4).  In contrast,  no substantial  differences across stakeholder  groups were  observed as  regards 
effective  penalties  on  employers,  which  were  considered  less  effective.  To  some  extent  the 
responses  to  this  question  were  influenced  by  the  high  number  of  ‘no  such  measure  in  my 
country’ responses, which primarily stem from Germany. 

76 

 
 
Figure  4.  Proportions  of  ‘very  effective’  or  ‘somewhat  effective’  to  responses  concerning 
measures to protect workers by stakeholder group 

In accordance with the foregoing conclusions, companies and businesses were around twice as 
likely — compared with other stakeholders — to believe that in the past 10 years progress had 
been  made  in  the  areas  of  enforcement  of  equal  pay  rights  and  the  protection  of  workers 
claiming these rights. 

Furthermore,  these  findings  on  EU-level  measures  are  mirrored  by  the  answers  given  by 
companies and businesses on national measures facilitating the respect of equal pay rights for 
women  and  men  and  the  protection  of  a  worker  claiming  his/her  rights.  Companies  and 
businesses are far more likely to have favourable views on the level of the employee awareness 
of  pay  gaps  and  whether  victims  of  gender-based  discrimination  in  relation  to  pay  have 
increased access to justice (approx. 80%) compared to EU citizens and trade unions and NGOs 
(approx. 40% each). 

The survey also gathered input on the broader impact of the EU legislation, which shows that 
EU  legislation  stimulated  the  debate  on  equal  pay.  More  than  70%  of  all  respondents  agreed 
that the EU legislation increased public debate about the need to ensure pay transparency and 
the  need  to  introduce  effective  measures.  Opinions  concerning  the  extent  to  which  public 
debate was increased varied somewhat by stakeholder group, but not substantially. 

Pay transparency – benefits, risks and costs 

Respondents  had  an  opportunity  to  provide  opinions  on  the  benefits  and  risks  of  pay 
transparency  measures  and  to  share  their  views  on  the  benefits  in  relation  to  the  costs  of 
implementation. 

77 

 
 
 
Figure5. Proportion of ‘rather important’ and ‘very important’ responses by select stakeholder 
groups  

The divergence between stakeholder  groups observed in  the results of the general  opinion on 
equal pay between men and women (see above) is mirrored by the level of importance given to 
each  of  the  seven  different  benefits  of  pay  transparency  the  respondents  were  asked  to 
comment on. While the proportion of trade unions and NGOs who considered the benefits to be 
important  ranged  from  53%  to  83%  depending  on  the  type  of  benefit,  the  proportion  among 
companies and businesses oscillates between 13% and 24% (see Figure 5). 

The  highest  level  of  the  response  ‘no  such  measures  in  my  country’  was  observed  for 
‘employees’ rights to request pay information enables their right to equal pay for work of equal 
value’  and  ‘the  employers’  duty  to  provide  and  publish  pay  information  helps  to  create  an 
atmosphere of trust’. 

On the perceptions concerning the risks of pay transparency measures, it is not surprising that 
companies and businesses were far more greatly concerned about the risks of pay transparency 
measures, especially the risk of administrative burdens and costs for employers (at about 85%) 
than trade unions and NGOs (about 10%). 

Respondents struggled to provide a viewpoint on the level of the implementation costs and of 
the  benefits  of  EU  legislation  on  ‘equal  pay’.  In  full  contrast  to  the  other  stakeholders, 
companies  and  business  believe  that  their  costs  exceeded  the  benefits  of  EU  legislation  with 
only  13%  agreeing  that  the  benefits  outweigh  the  implementation  costs.  These  findings  are 
consistent  with  those  concerning  risks  of  pay  transparency  measures  where  the  majority  of 
employers cited administrative burdens and costs as examples of such risks. 

Enforcement measures and protection of victims of gender pay discrimination 

Finally,  the  public  consultation  allowed  respondents  to  provide  their  opinions  on  how 
effectively  measures  are  enforced  and  on  measures  that  could  encourage  victims  of  pay 

78 

 
 
 
discrimination to come forward. It also solicited input on the need for additional EU action to 
reduce the occurrence of gender pay discrimination. 

At least 20% of respondents, mostly those from Germany, Italy and Austria, believe that such 
measures are not in place in their countries. 

Regarding factors that may influence a victim’s decision whether or not to seek redress in the 
case  of  alleged  pay  discrimination,  there  are  substantial  differences  between  the  different 
stakeholder groups on several specific factors (see Table 2): The most obvious gap between the 
views  of  companies  and  businesses  and  those  of  EU  citizens  and  trade  unions/NGOs 
respectively concerns the fear of professional consequences and that no action will be taken to 
remedy  a  wrongdoing.  This  substantially  diverging  subjective  perception  suggests  that 
employers have little awareness of the factors that keep people from seeking redress in cases of 
alleged  pay  discrimination  and  points  to  need  for  more  transparent  communication  on  these 
points. 

Table  2.  Proportion  of  respondents  from  select  stakeholder  groups  who  choose  ‘rather 
important’  or  ‘very  important’  in  response  to  factors  that  may  influence  a  victim’s  decision 
whether or not to seek redress in case of alleged discrimination.  

Companies 
businesses 

and 

EU citizens 

Trade  unions  and 
NGOs 

Lengthy and costly litigation 

Fear of professional consequences 

Lack  of  knowledge  on  how/where  to 
complain 
Perception  that  no  action  will  be  taken  to 
remedy a wrongdoing 
Lack of support from professional bodies 

Inadequate  levels  of  compensation  for 
victims 

70% 

28% 

66% 

15% 

15% 

18% 

88% 

90% 

82% 

85% 

78% 

64% 

79% 

83% 

79% 

70% 

51% 

53% 

This  conclusion  is  supported  by  the  insights  that  emerge  from  the  opinion  of  companies  and 
businesses on measures that could encourage victims of gender-related pay discrimination to 
seek redress. They are overall less likely to hold a favourable view on any measure, especially 
those  concerning:  i)  employers,  the  State  and  equality  bodies  having  to  provide  clear 
information and raise awareness; and ii) the burden of proof being put on employers.  

Finally, when it comes to the need for further EU-level action to address gender-related pay 
discrimination, the vast majority of companies and businesses believe that existing measures at 
EU or national level in place are sufficient (85%). Only about 9% believe that new legislative 
measures are needed.  

EU citizens/trade unions and NGOs 

When  analysing  stakeholders’  positions  the  overall  impression  is  that  EU  citizens  and  trade 
unions/NGOs often do not differ a lot from each other. This can be explained with the fact that 
both sub-groups generally represent the employees’ perspective rather than that of employers. 
Thus these two sub-groups are evaluated and analysed together in the following part.  

General part 

79 

 
 
 
 
EU  citizens  and  trade  unions/NGOs  are  substantially  more  likely  to  believe  that  men  and 
women  are  not  paid  equally  for  the  same  work  or  work  of  equal  value  (55%  and  57% 
respectively)  than  companies  and  businesses.  This  finding  is  mirrored  when  it  comes  to  the 
evaluation  of  the  effectiveness  of  the  implementation  of  the  equal  pay  principle,  where  the 
majority of the EU citizens and trade unions/NGOs reported that it is effectively implemented 
in the public sector but less so in the private sector.  

This  distinction  between  private  and  public  sector  continues  within  the  responses  of 
EU citizens and trade unions/NGOs on the effectiveness of the individual measures. Regarding 
the access to information on pay levels, private sector measures were considered less effective 
than public sector measures. Enforceable rules on equal pay measures were perceived similarly. 

The responses on effective measures to ensure protection of a worker claiming enforcement of 
his/her  rights  to  equal  pay  confirm  the  foregoing  observations.  In  the  opinion  of  EU  citizens 
and trade unions/NGOs none of the measures in their respective countries are ’very effective’ 
or  even  ‘somewhat  effective’.  It  is  noteworthy  that  respondents  did  not  consider  either  the 
reversal of the burden of proof or penalties on employers as effective. 

As has been analysed for companies and businesses, the responses on  the impact of national 
measures to facilitate the respect of equal pay rights mirror the above described findings on 
EU-level  measures.  Only  around  40%  of  the  stakeholders  in  this  section  agree  that  national 
measures increase i) employee awareness of gender pay gaps and ii) the access to information 
on  pay  levels  for  victims  of  pay  discrimination.  Furthermore,  fewer  EU  citizens  and  trade 
unions/NGOs than companies and businesses were of the opinion that progress had been made 
in  past  10  years  in  facilitating  the  enforcement  of  equal  pay  rights  and  especially  the 
protection of workers claiming these rights. 

Pay transparency — benefits, risks and costs 

Trade unions and NGOs considered each of the seven different benefits of pay transparency as 
significant, while their level of significance ranged from 53% to 83% depending on the type of 
benefit. As regards EU citizens, at least 60% considered the benefits in question to be rather or 
very significant.  

In  contrast  to  companies  and  businesses,  trade  unions/NGOs  considered  risks  of  pay 
transparency measures such as the risk of administrative burdens and costs for employers as not 
a  big  concern  (about  10%).  Correspondingly,  82%  of  the  EU  citizens  and  92%  of  trade 
unions/NGOs  surveyed  in  this  consultation  felt  that  the  benefits  stemming  from  the 
implementation of pay transparency measures exceed the implementation costs. 

Enforcement measures and protection of victims of gender pay discrimination 

As  pointed  out  in  the  above  analysis,  for  EU  citizens  and  trade  unions/NGOs  the  most 
significant factors that may influence a victim’s decision whether or not to seek redress in the 
case of alleged pay discrimination, are the  fear  of professional  consequences,  the perception 
that no action will be taken to remedy a wrongdoing and the lack of support from professional 
bodies.  They  attributed  a  far  greater  significance  to  these  factors  than  companies/businesses. 
Only on the answer option ‘lack of knowledge on how/where to complain’ did all stakeholders 
somewhat agree on the level of significance. 

Consequently,  EU  citizens  consider  clear  information  from  the  State  and  equality  bodies  as 
well  as  the  burden  of  proof  on  employers  to  be  the  most  effective  measures  to  encourage 

80 

 
 
victims  of  gender-related  pay  discrimination  to  seek  redress.  Trade  unions  and  NGOs  were 
more likely to value clear information and awareness raising from employers. 

Finally, only a few EU citizens (15%), trade unions and NGOs (11%) find the current measures 
sufficient  and  they  were  more  likely  than  companies  and  businesses  to  believe  that  new 
legislative measures at EU or national levels were needed (52% and 57%). 

Analysis of stakeholders’ position papers 

As  part  of  the  consultation,  respondents  were  invited  to  send  in  any  additional  evidence  or 
material  illustrating  the  stakeholder  position  and  recommendations  to  ensure  equal  pay  for 
women and men. Out of 16 files received (after removing the duplications), only six presented 
the  positions  of  different  EU-level  stakeholder  organisations229  (two  employer/business 
organisations, two NGOs, one trade union and one organisation representing local and regional 
governments). One document presenting the initiative of the Business and Professional Women 
Europe, and four documents on national action plans did not provide a position on equal pay. In 
the same vein,  four documents provided national  level  statistics or a comparative analysis on 
the  pay  gap  rather  than  conveying  a  specific  position.  One  file  contained  an  unidentified 
document titled ‘Commission Consultation to Review Equal Pay’. 

The analysis of the position papers sent by stakeholders draws a similar picture as found in the 
responses to the public consultation.  

Business  associations  find  the  current  legislation  sufficient  and  appropriate  and  opt  for  a 
stronger focus on collaborating with social partners as well as implementing the Commission’s 
suggestions on a voluntary basis. 

Trade unions and NGOs state that the biggest obstacles to achieving equal pay still are the lack 
of effective measures on pay transparency and insufficient access to judicial redress. In addition 
to the position analysed in the answers, NGOs demand that other drivers of the gender pay gap 
be  addressed  outside  the  scope  of  the  legislation,  e.g.  affordable  childcare  services, 
reconciliation of work and care and tackling the motherhood penalty.  

Conclusion 

The  replies  to  this  public  consultation  fed  into  the  European  Commission’s  evaluation  of  the 
EU legal framework on equal pay. 

Summing  up  the  analysed  responses  from  the  different  stakeholders,  the  majority  of  the 
companies  and  businesses  are  already  satisfied  with  the  status  quo  as  regards  the 
implementation  of  both  EU-level  and  national  measures  and  the  perceived  progress  that  has 
been  made.  They  believe  the  legislative  measures  are  being  implemented  effectively,  
especially in the private sector and feel that employees are much more aware of their equal pay 
rights and access to justice.  

Furthermore, on the one hand companies and businesses accord low importance to the benefits 
of pay transparency and on the other perceive high risks of administrative burden and costs for 

229 CEEP — European Centre of Employers and Enterprises providing Public Services and Services of general interest (employer and business 
organisation);  HOTREC  —  Association  of  Hotels,  Restaurants,  Bars  and  Cafes  in  Europe  (employer  and  business  organisation); 
EUROCADRES — Council of European professional and managerial staff (trade union); AGE Platform Europe — European network of non-
profit organisations of and for people aged 50+ (network organisation); MMM Europe — Make Mothers Matter EU Delegation (NGO); CEMR 
— The Council of European Municipalities and Regions (association of local and regional governments). 

81 

 
 
 
 
                                                           
employers  as  a  result  of  implementing  pay  transparency  measures.  Finally,  they  feel  that  the 
implementation  costs  mostly  exceed  the  benefits.  Overall,  they  do  not  seem  to  consider  it 
necessary to make changes to the current legislation.  

In  contrast,  the  majority  of  respondents  among  EU  citizens  and  trade  unions/NGOs, 
representing  the  employees’  perspective,  stated  that  the  fear  of  professional  consequences 
prevents  them  from  seeking  redress  and  that  clearer  information  from  both  the  employer  and 
the public equality bodies could encourage them to take legal measures.  

This divergence points to the opportunity to raise employers’ awareness of the factors that may 
influence  a  victim’s  decision  to  seek  redress  in  a  case  of  alleged  pay  discrimination,  which 
could usefully be done by intensifying social dialogue. 

Furthermore,  when  it  comes  to  the  question  whether  new  EU  legislation  is  needed,  the 
stakeholders’ opinions also vary widely.  

Public consultation on gender equality in the EU 

including 

academic/research 

In  addition,  the  open  public  consultation  on  gender  equality  in  the  EU230  took  place  from 
8 March until 31 May 2019 to collect views on the current state of gender equality in the EU as 
well  as  on  future  priorities.  The  consultation  received  1,335  replies  from  a  broad  range  of 
stakeholders, 
associations, 
company/business organisations, consumer organisations, EU citizens, non-EU citizens, NGOs, 
public authorities, trade unions and others. Among other things, the survey’s participants were 
asked  which  specific  goals  they  would  prioritise  for  EU  action  to  increase  women’s 
participation  in  the  labour  market  and  to  tackle  the  gaps  in  gender  employment,  pay  and 
pensions. Introducing measures to further support the principle of ‘equal pay for equal work or 
work of equal value’, such as gender-neutral job classifications and pay transparency (54% of 
all respondents) was the option that was most often marked by the respondents for this policy 
area231. 

institutions, 

business 

230 https://ec.europa.eu/info/law/better-regulation/initiatives/genderequalitybrp/public-consultation_en. 
231 This was marked by 73% of NGOs/trade unions, 65% of academic/research institutions, 63% of public authorities, 51% of EU citizens and 
35% of employers’ organisations. 

82 

 
 
 
  
 
 
                                                           
Annex  3  —  Methodological  issues  on  the  gender  pay  gap  indicator  and  its 
decomposition using the Structure of Earnings Survey microdata 

The (unadjusted) gender pay gap is computed as the difference between average gross hourly 
earnings  of  male  paid  employees  and  of  female  paid  employees  as  a  percentage  of  average 
gross232  hourly  earnings  of  male  paid  employees233.  This  is  a  simple  indicator  of  wage 
inequalities and it is a handy tool for communication and policy-making for this very reason. 
Important specificities of this indicator must however be taken into account in its interpretation.  

The  notion  of  pay  in  Article 157  TFEU  and  the  Directive234  (i.e.  ‘the  ordinary  basic  or 
minimum  wage  or  salary  and  any  other  consideration,  whether  in  cash  or  in  kind,  which  the 
worker receives directly or indirectly, in respect of his/her employment from his/her employer’) 
does  not  correspond  to  earnings  as  expressed  in  the  gender  pay  gap  indicator.  The  reference 
data  set,  the  Structure  of  Earnings  Survey  (SES)235,  excludes  bonuses,  irregular  overtime  and 
any 13th month payment, which are relevant indicative tests for gender equality in the labour 
market as they often favour men. Moreover, SES data exclude companies with fewer than 10 
employees236 and cannot take into account differences between part-time and full-time workers. 
Finally, the indicator is computed for the whole economy defined as industry, construction and 
services except public administration, defence and compulsory social security237. 

It  is  important  to  stress  that  the  gender  pay  gap  (GPG)  gives  an  overall  picture  of  the 
differences  between  men  and  women  in  terms  of  pay  and,  therefore,  measures  a  broader 
concept than the concept of equal pay for equal work. As with any statistical indicator, it only 
provides  factual  information  and  it  does  not  have  the  capacity  to  distinguish  between 
differences due to discriminatory treatment or legitimate deviations according to the Directive; 
it  cannot  therefore  be  used  as  a  reference  point  for  the  implementation  of  the  anti-
discrimination framework.  

A  more  precise  picture  is  obtained  by  decomposing  the  indicator238  into  explained  and 
unexplained  parts.  The  explained  part  is  the  gap  that  can  be  linked  to  the  differences  in  the 
average characteristics (sector of activity, age, occupation, etc.) of male and female employees. 
The  unexplained  part  is  the  difference  between  earnings  of  men  and  women  with  the  same 
characteristics  that  can  be  linked  to  unobservable  variables  (such  as  negotiating  skills)  or 
unavailable  variables  (such  as  career  breaks  as  the  SES  dataset  only  contains  information  on 
employees’  tenure  in  the  current  job).  However,  the  model  cannot  account  for  possible 
feedback effects between the two components. For instance, access to some occupations might 
be  gender-biased.  Finally,  comparisons  of  the  indicator  across  countries  must  also  take  into 
account  differences  in  the  structural  conditions  of  the  labour  market  and  the  relative  social 
value of occupations. 

232 Taxation systems might, therefore, further penalise the worker with lower salary in the household (typically the woman) who will be subject 
to the tax rate of the higher-earning worker. 
233 A decrease of average gross earnings of males, therefore, also reduces the GPG and has different impact on poverty rates than an increase in 
female average gross wages. 
234 In Article 157(2) TFEU and Article 2(e) of Directive 2006/54/EC. 
235 SES microdata are collected every 4 years as of 2002. National estimates are computed for the years in-between. 
236  Participating  countries  are  required  to  collect  data  on  companies  with  at  least  10  employees  operating  in  the  economic  activities  of  the 
European  Community  (NACE  — Rev  2)  ranging  from  B to  S  excluding O  (public  administrations).  Nevertheless,  countries can  voluntarily 
collect information on section O and on companies with 10 employees. Currently data for all companies are only available for Czechia. 
237 Data by ownership of economic authority are available in another time series for most countries. 
238 Using the ‘Blinder-Oaxaca decomposition’ — see later. 

83 

 
 
                                                           
A statistical working paper (SWP) from Eurostat analysed in more detail the GPG data through 
this  decomposition.239  The  adjusted  (explained)  GPG  is  lower  in  most  countries,  better 
reflecting  average  characteristics  of  men  in  terms  of  sector,  occupation  and  age,  though  still 
pointing to differences in earnings. However, in some countries it is the other way around, i.e. 
women  have  better  average  characteristics.  In  particular,  this  is  the  case  for  countries  with  a 
low employment rate of women. In this situation, the adjusted GPG highlights (by being higher 
that  the  unadjusted  GPG)  a  selection  bias  (i.e.  only  women  more  likely  to  earn  a  relatively 
higher  salary  will  work,  or,  in  other  words,  mostly  higher-educated  women  work  in  higher-
paying  sectors)  and  provides  a  better  illustration  of  the  GPG.  The  adjusted  GPG  enables 
segregation  effects  on  the  basis  of  overall  differences  in  average  characteristics  of  men  and 
women  to  be  grasped,  e.g.  in  economic  activities  or  occupations.  However,  it  is  not  yet  a 
precise indicator because the inclusion in the model of omitted variables could still change the 
results of the decomposition.  These limitations must be specifically taken into account  in  the 
interpretation of the unexplained (residual) part of the GPG decomposition which has the same 
limitations and, therefore, is in itself not an indicator or even an upper bound of discrimination 
on the grounds of sex in the labour market. 

Figure 1.  Unadjusted gender pay gap by Member State; 2006, 2014 and 2017 

Source: Eurostat, sdg_05_20. 

239  See  Denis  Leythienne,  Piotr  Ronkowski.  A  decomposition  of  the  unadjusted  gender  pay  gap  using  Structure  of  Earnings  Survey  data. 
Eurostat,  2018.  The  ‘Statistical  Working  Papers’  (SWPs)  collection  is  used  to  publish  innovative  methodological  work  to  inform  and 
stimulate discussions among statisticians. Therefore, the data and statistics in SWPs should be considered as work in progress. 

84 

 
 
 
 
                                                           
Table 1. Gender pay gap, by Member State and EU overall  

Member State 
EU-28 
EU-27 
AT 
BE 
BG 
CY 
CZ 
DE 
DK 
EE 
EL 
ES 
FI 
FR 
HR 
HU 
IE 
IT 
LT 
LU 
LV 
MT 
NL 
PL 
PT 
RO 
SE 
SI 
SK 
UK 
Source: Eurostat (sdg_05_20). 

2002 
: 
: 
: 
: 
18.9 
22.5 
22.1 
: 
: 
: 
25.5 
20.2 
: 
: 
: 
19.1 
15.1 
: 
13.2 
: 
: 
: 
18.7 
7.5 
: 
16 
: 
6.1 
27.7 
27.3 

2006 
: 
17.7 
25.5 
9.5 
12.4 
21.8 
23.4 
22.7 
17.6 
29.8 
20.7 
17.9 
21.3 
15.4 
: 
14.4 
17.2 
4.4 
17.1 
10.7 
15.1 
5.2 
23.6 
7.5 
8.4 
7.8 
16.5 
8 
25.8 
24.3 

2014 
16.6 
16.6 
22.2 
6.6 
14.2 
14.2 
22.5 
22.3 
16 
28.1 
12.5 
14.9 
18.4 
15.5 
8.7 
15.1 
13.9 
6.1 
13.3 
5.4 
17.3 
10.6 
16.2 
7.7 
14.9 
4.5 
13.8 
7 
19.7 
20.9 

2017 
16 
16.1 
19.9 
6 
13.6 
13.7 
21.1 
21 
14.7 
25.6 
: 
15.1 
16.7 
15.4 
11.6 
14.2 
: 
5 
15.2 
5 
15.7 
12.2 
15.2 
7.2 
16.3 
3.5 
12.6 
8 
19.8 
20.8 

Decomposition of the gender pay gap indicator using SES microdata 

The approach followed that taken by a methodological statistical working paper240 carried out 
by  Eurostat  in  2018241.  In  that  working  paper,  Eurostat  employed  a  ‘Blinder  —  Oaxaca 
decomposition’  to  break  down  the  unadjusted  gender  pay  gap  into  an  explained  and  an 
unexplained  component  using  microdata  from  the  2014  SES.  The  analysis  builds  on  this 
approach by applying a consistent methodology to break down the unadjusted gender pay gap 
across time looking at microdata from SES 2006, SES 2010 and SES 2014 (data for 2018 were 
not available at the time of writing and data for 2002 are not fully comparable). Eurostat results 
are based on the full dataset only available at Eurostat’s ‘Safe centre’ in Luxembourg. The data 
released to the research community undergoes an anonymisation procedure which prevents the 
same  granularity.  Therefore,  the  reference  samples,  and  the  gender  pay  gap  indicator 

240 The ‘Statistical Working Papers’ collection is used to publish innovative methodological work to inform and stimulate discussions among 
statisticians. Therefore, the data and statistics in SWPs should be considered as work in progress. 
241 D. Leythienne, P. Ronkowski. A decomposition of the unadjusted gender pay gap using Structure of Earnings Survey data. Eurostat, 2018. 

85 

 
 
                                                           
computations, are slightly different from those computed by Eurostat. The technical details are 
available in the Annex of the support study242. 
The table below presents the findings from the decomposition analysis for the baseline (2006).  

Table 2. Decomposition of the results for the baseline (2006) 

Avg earnings — 
men in euro 
18.16 
11.27 
4.67 
17.93 
4.23 
10.44 
10.05 
17.53 
16.71 
3.73 
2.96 
19.95 
2.72 
16.63 
25.20 
4.30 
7.30 
17.54 
3.55 
21.88 

Country 
BE 
CY 
CZ 
DE 
EE 
EL 
ES 
FI 
FR 
HU 
LT 
LU 
LV 
NL 
NO 
PL 
PT 
SE 
SK 
UK 
Source: Support study 
a The indicator was recomputed for the evaluation and might differ from official Eurostat data. 

Avg earnings — 
women in euro 
16.44 
8.70 
3.61 
13.90 
3.05 
8.28 
8.34 
13.84 
14.10 
3.22 
2.50 
17.82 
2.37 
12.58 
21.07 
3.99 
6.68 
14.65 
2.66 
16.70 

Unadjusted 
GPGa 
0.09 
0.23 
0.23 
0.23 
0.28 
0.21 
0.17 
0.21 
0.16 
0.14 
0.16 
0.11 
0.13 
0.24 
0.16 
0.07 
0.08 
0.16 
0.25 
0.24 

Explained 
GPG 
2% 
5% 
4% 
8% 
7% 
11% 
2% 
8% 
5% 
1% 
3% 
2% 
-4% 
9% 
9% 
-7% 
-4% 
9% 
7% 
10% 

Unexplained 
GPG 
7% 
18% 
19% 
14% 
20% 
10% 
15% 
13% 
11% 
13% 
12% 
9% 
16% 
15% 
8% 
14% 
13% 
7% 
18% 
14% 

For countries with more than one wave of data available, the table below present the development of the 
unadjusted gender pay gap, the explained and the unexplained gender pay gap. 

Table 3. Trends in the gender pay gap decomposition (2006, 2010 and 2014) 

2006 

2010 

2014 

Country 

Unadjusted 
GPGa  

Unexplained 
GPG 

Explained 
GPG 

 Unadjusted 
GPGa  

 Unexplained 
GPG 

 Explained 
GPG 

 Unadjusted 
GPGa 

Unexplained 
GPG 

Explained 
GPG 

EE 

EL 

ES 

FI 

FR 

HU 

LT 

LU 

LV 

28% 

21% 

17% 

21% 

16% 

14% 

16% 

11% 

13% 

20% 

10% 

15% 

13% 

11% 

13% 

12% 

9% 

16% 

7% 

11% 

2% 

8% 

5% 

1% 

3% 

2% 

-4% 

25% 

15% 

16% 

20% 

16% 

14% 

10% 

9% 

13% 

16% 

8% 

13% 

11% 

11% 

13% 

19% 

11% 

19% 

9% 

7% 

3% 

9% 

5% 

1% 

-9% 

-2% 

-6% 

25% 

19% 

6% 

14% 

18% 

15% 

11% 

11% 

5% 

15% 

11% 

11% 

10% 

15% 

22% 

10% 

14% 

4% 

7% 

5% 

-4% 

-11% 

-4% 

1% 

242 https://data.europa.eu/doi/10.2838/823955  

86 

 
 
 
 
 
 
 
                                                           
NL 

PL 

PT 

RO 

SE 

SK 

UK 

24% 

7% 

8% 

6% 

16% 

25% 

24% 

15% 

14% 

13% 

8% 

7% 

18% 

14% 

9% 

-7% 

-4% 

-2% 

9% 

7% 

10% 

17% 

5% 

13% 

9% 

19% 

24% 

9% 

15% 

15% 

8% 

17% 

16% 

8% 

-10% 

-2% 

1% 

2% 

8% 

18% 

8% 

15% 

4% 

14% 

19% 

21% 

8% 

15% 

13% 

32% 

7% 

16% 

11% 

10% 

-7% 

1% 

-27% 

7% 

3% 

9% 

     Source: Support study 
       a The indicator was recomputed for the evaluation and might differ from official Eurostat data. 

87 

 
 
 
 
 
 
Annex 4 — Intervention logic 

88 

 
 
 
 
  
 
Annex 5 — Evaluation questions  

The evaluation assessed the relevant equal pay provisions of the Directive, strengthened by the 
Recommendation,  against  the  evaluation  dimensions  of  effectiveness,  efficiency,  coherence, 
relevance and EU added value based on these questions: 

Effectiveness 

1.  How has the introduction of the equal pay principle at the EU level contributed 
to Member States applying the concept in their national legislation and practice? 
What  are  the  monitoring  and  enforcement  mechanisms  in  individual  Member 
States  and  what  is  their  role  in  making  the  equal  pay  provisions  effective?  In 
cases  where national  legislation was adopted, how effective  was it in  reducing 
the gender pay gap in its adjusted and unadjusted form243?     

2.  To  what  extent  have  the  relevant  provisions  of  the  Directive  as  regards  the 
implementation of the equal pay principle, reinforced by the Recommendation, 
triggered  actions  at  the  national  level  to  increase  wage  transparency?  In  cases 
where  national  legislation  was  adopted,  how  effective  was  it  in  reducing  the 
gender pay gap in its adjusted and unadjusted form?     

3.  To  what  extent  have  the  specific  provisions  of  the  Directive  as  regards  the 
implementation of the equal pay principle, reinforced by the Recommendation, 
been effective in bringing to light pay discrimination? 

4.  To  what  extent  have  the  relevant  provisions  of  the  Directive  as  regards  the 
implementation of the equal pay principle, reinforced by the Recommendation, 
contributed to allowing a victim of pay discrimination to effectively bring a case 
to  court?  What  is  the  impact  on  effectiveness  of  the  provisions  relating  to 
compensation  to  victims  and  sanctions?  Do  the  latter  have  a  dissuasive 
character? 

5.  To  what  extent  have  the  relevant  provisions  of  the  Directive  as  regards  the 
implementation of the equal pay principle, reinforced by the Recommendation, 
been  effective  in  inciting  companies  to  take  the  initiative  to  analyse  their  pay 
structures in order to determine pay discrimination? 

6.  To  what  extent  have  the  relevant  provisions  of  the  Directive  as  regards  the 
implementation of the equal pay principle, reinforced by the Recommendation, 
been effective in inciting the use and diffusion of gender-neutral job evaluation 
and  classification  systems  resulting  in  the  implementation  of  the  equal  pay 
principle?  

7.  To  what  extent  have  the  relevant  provisions  of  the  Directive  as  regards  the 
implementation of the equal pay principle, reinforced by the Recommendation, 
been  effective  in  ensuring  enforcement  at  national  level  by  competent  bodies 
such  as  national  equality  bodies,  labour  inspectorates,  and  other  enforcement 
bodies? 

Efficiency 

1.  What are the economic costs and benefits incurred from applying the present EU 

legislation regarding the equal pay principle? 

243 http://ec.europa.eu/eurostat/cache/metadata/en/sdg_05_20_esmsip2.htm. 

89 

 
 
                                                           
Relevance 

2.  To what extent have the specific objectives linked to equal pay of the Directive, 
reinforced by the Recommendation, been achieved at a reasonable cost in terms 
of financial and human resources deployed at administrative and regulatory level 
by Member States’ administrations and by employers? 

3.  If there are significant differences in costs or benefits between Member States, 

what is causing them? 

4.  How are these costs and benefits distributed among the different stakeholders 

affected?  

5.  Did  countries  which  implemented  measures  proposed  by  the  Recommendation 

experience some significant upwards wage pressure linked to this? 

6.  What  is  the  interplay  between  the  short-term  and  longer-term  impacts  e.g.  are 
the potential short-term costs incurred justified and proportionate to the potential 
longer-term  benefits  from  gender  equality  and  from  enlarged  access  and 
participation to the labour market? 

1.  To  what  extent  do  the  relevant  provisions  of  the  Directive,  reinforced  by  the 
Recommendation,  correspond  to  the  need  to  prevent  pay  discrimination  and 
ensure ‘equal pay’ between women and men in the EU? Have they been relevant 
for the different stakeholders affected? 

2.  To  what  extent  do  the  relevant  provisions  of  the  Directive,  reinforced  by  the 
Recommendation,  contribute  to  mainstreaming  pay  transparency  in  national 
policy?  

3.  To  what  extent  do  the  relevant  provisions  of  the  Directive,  reinforced  by  the 
Recommendation, provide for relevant  actions for improving the prevention of 
pay discrimination and realisation of pay transparency? 

4.  To  what  extent  do  the  relevant  provisions  of  the  Directive,  reinforced  by  the 
Recommendation,  contribute  to  enforcing  antidiscrimination  measures  relating 
to the pay of women and men at national level through national equality bodies 
and other enforcement bodies such as labour inspectorates?  

5.  To  what  extent  do  the  relevant  provisions  of  the  Directive,  reinforced  by  the 
Recommendation,  contribute  to  ensuring  access  to  justice  for  victims  of  sex 
discrimination in relation to pay? 

6.  To what extent have the provisions of the Directive on the equal pay principle, 
as reinforced by the Recommendation, been applied by national courts and non-
judicial authorities? Have the provisions affected the amount of cases prosecuted 
or  court  judgments  issued  on  pay  discrimination?  Have  they  affected  court 
practice  on  granting  compensation  to  victims  of  pay  discrimination?  Is 
information available on the length of proceedings or the availability and use of 
legal  aid  in  pay  discrimination  cases?  Is  information  available  on  the 
enforcement of pay discrimination judgments? 

Coherence 

1.  To what extent is the Directive, reinforced by the Recommendation, coherent or 
not  with  other  interventions  which  have  similar  objectives  of  reducing  gender 
discrimination and contributing to gender equality at EU and national level? 
2.  To what extent is the Directive, reinforced by the Recommendation, coherent or 
not  with  wider  EU  or  national  policies?  (In  particular,  please  consider  the 

90 

 
 
relationship  between the data protection and privacy  legislation  and provisions 
of the Recommendation referring to the right to request pay information). 

3.  To  what  extent  is  the  Directive,  reinforced  by  the  Recommendation,  coherent 
with  international  obligations  and  standards  (such  as  those  defined  in  the 
International Covenant on Civil and Political Rights, the International Covenant 
on Economic, Social and Cultural Rights and the Convention on the Elimination 
of Discrimination Against Women (CEDAW))? 

EU added value 

1.  What  is  the  additional  value  resulting  from  the  application  of  the  Directive, 
reinforced by the Recommendation, compared to what could have been achieved 
in 
the  basis  of 
Article 157 TFEU? 

terms  of  equal  pay  by  Member  States  solely  on 

2.  To what extent do the issues of equal pay addressed by the Directive, reinforced 

by the Recommendation, continue to require action at EU level? 

91 

 
 
 
Annex 6 — Provisions within the scope of the evaluation 

The  scope  of  the  evaluation  covers  Article 157  of  the  TFEU,  selected  provisions  of  the 
Directive and the Recommendation. Article 157 of the TFEU requires that each Member State 
ensure that the principle of equal pay for female and male workers for equal work or work of 
equal value is applied. The selected provisions of the Directive that fall within the scope of the 
evaluation are highlighted in the table below.  

Table 1 — Provisions of the Directive  
The Directive  

Article 4 
Prohibition of 
discrimination 

For the same work or for work to which equal value is attributed, direct and indirect 
discrimination  on  the  ground  of  sex,  with  regard  to  all  aspects  and  conditions  of 
remuneration, shall be eliminated. 
In particular, where a job classification system is used for determining pay, it shall be 
based on the  same criteria  for both  women and  men and drawn up so as to exclude 
any discrimination on the ground of sex. 

 Article 9 
Examples of 
discrimination 
(exceptions) 

Article 17 
Defence of rights 

Article 18 
Compensation or 
reparation 

Article 19 
Burden of proof 

Article 20 
Equality bodies 

(h) setting different levels of benefit, except in so far as may be necessary to take 
account of actuarial calculation factors which differ according to sex in the case of 
defined contribution schemes; in the case of funded defined-benefit schemes, certain 
elements may be unequal where the inequality of the amounts results from the effects 
of the use of actuarial factors differing according to sex at the time when the scheme's 
funding is implemented; 
(j) setting different levels for employers' contributions, except: 

(i) in the case of defined-contribution schemes if the aim is to equalise the 
amount of the final benefits or to make them more nearly equal for both 
sexes,  
(ii) in the case of funded defined-benefit schemes where the employer's 
contributions are intended to ensure the adequacy of the funds necessary to 
cover the cost of the benefits defined 

Member  States  shall  ensure  that  judicial  procedures  for  the  enforcement  of 
obligations under this Directive are available to all persons who consider themselves 
wronged by a failure to apply the principle of equal treatment to them. 
Member States shall ensure that associations, organisations or other legal entities with 
a legitimate interest may engage, either on behalf or in support of the complainant, in 
any  judicial  and/or  administrative  procedure  provided  for  the  enforcement  of 
obligations under this Directive. 

Member States shall introduce into their national legal systems such measures as are 
necessary  to  ensure  real  and  effective  compensation  or  reparation  as  a  result  of 
discrimination on the ground of sex, in a way which is dissuasive and proportionate to 
the damage suffered.  

Member States shall take such measures to ensure that in cases of presumed direct or 
indirect discrimination, it shall be for the respondent to prove that there has been no 
breach of the principle of equal treatment. 

Member  States  shall  designate  and  make  the  necessary  arrangements  for  a  body  or 
bodies for the promotion, analysis,  monitoring and support of equal treatment of all 
persons without discrimination on grounds of sex.  
Member  States  shall  ensure  that  the  competences  of  these  bodies  include  providing 
independent  assistance  to  victims  of  discrimination  in  pursuing  their  complaints  in 
respect of discrimination. 

Article 21 
Social dialogue 

Member States shall take adequate measures to promote social dialogue  between the 
social partners, with a view to fostering equal treatment. 
Member  States  shall  encourage  the  social  partners  to  conclude,  at  the  appropriate 

92 

 
 
level, agreements laying down anti-discrimination rules.  
Member States shall encourage employers to promote equal treatment for women and 
men.  To  this  end,  employers  shall  be  encouraged  to  provide,  at  appropriate  regular 
intervals,  employees  and/or  their  representatives  with  relevant  information  on  equal 
treatment  for  their  women  and  men  workers.  Such  information  may  include  an 
overview of the proportions of women and men at different levels of the organisation, 
their  pay  and  pay  differentials,  and  possible  measures  to  improve  the  situation,  in 
cooperation with employees’ representatives. 

Member States shall introduce measures to protect employees, including employees’ 
representatives,  against  dismissal  or  other  adverse  treatment  by  the  employer  as  a 
reaction to a complaint  within the  undertaking or to any legal proceedings aimed at 
enforcing compliance with the principle of equal treatment. 

Member States shall lay down the rules on penalties applicable to infringements and 
shall take all measures necessary to ensure that they are applied. The penalties, which 
may  comprise  the  payment  of  compensation  to  the  victim,  must  be  effective, 
proportionate and dissuasive.  

Member  States  shall  actively  take  into  account  the  objective  of  equality  between 
women  and  men  when 
regulations, 
administrative  provisions,  policies  and  activities  in  the  areas  referred  to  in  this 
Directive. 

formulating  and 

implementing 

laws, 

Member  States  shall  ensure  that  measures  taken  pursuant  to  this  Directive,  together 
with  the  provisions  already  in  force,  are  brought  to  the  attention  of  all  persons 
concerned, by all suitable means and, where appropriate, at the workplace. 

Member States should encourage public and private employers and social partners to 
adopt transparency policies on wage composition and structures. They should put in 
place specific measures to promote wage transparency.  

Article 24 
Victimisation 

Article 25 
Penalties 

Article 29 
Gender 
mainstreaming 

Article 30 
Dissemination of 
information 

The Recommendation 

Wage Transparency 

Right of employees to 
obtain information on 
pay levels 

Member States should put in place appropriate and proportionate measures to ensure 
that  employees  can  request  information  on  pay  levels,  broken  down  by  gender,  for 
categories  of  employees  doing  the  same  work  or  work  of  equal  value.  This 
information should include complementary or variable components beyond the fixed 
basic salary, such as payments in kind and bonuses. 

Reporting on pay 

Pay audits 

Making equal pay, 
including pay audits, 
part of the collective 
bargaining process 

Member  States  should  put  in  place  measures  that  ensure  that  employers  in 
undertakings  and  organisations  with  at  least  50  employees  regularly  inform 
employees, workers’ representatives and social partners of the average remuneration 
by category of employee or position, broken down by gender. 

Member  States  should  take  appropriate  measures  to  ensure  that  pay  audits  are 
conducted  in  undertakings  and  organisations  with  at  least  250  employees.  These 
audits  should  include  an  analysis  of  the  proportion  of  women  and  men  in  each 
category of employee or position, an analysis of the job evaluation and classification 
system used, and detailed information on pay and pay differentials on the ground of 
gender. These audits should be made available to workers’ representatives and social 
partners on request. 

Without prejudice to the autonomy of social partners and in accordance with national 
law and practice, Member States should ensure that the issue of equal pay, including 
pay audits, is discussed at the appropriate level of collective bargaining. 

93 

 
 
 
Annex 7 — Relevant CJEU-case law  

Case  C-262/88,  Douglas  Harvey  Barber  v  Guardian  Royal  Exchange  Assurance  Group,  [1990] 
ECLI:EU:C:1990:209. 

Case C-109/88, Handels- og Kontorfunktionærernes Forbund i Danmark v Dansk Arbejdsgiverforening, 
agissant pour Danfoss, ECLI:EU:C:1989:383 

Case C-171/88, Rinner-Kulhn v FWW Spezial-Gebaudereinigung GmbH [1989] ECLI:EU:C:1989:328. 

Case  C-147/02,  Alabaster  v  Woolwich  plc  and  Secretary  of  State  for  Social  Security  [2004] 
ECLI:EU:C:2004:192. 

Case C-278/93, Freers and Speckmann v Deutsche Bundepost [1996] ECLI:EU:C:1996:83. 

Case C-12/81, Eileen Garland v British Rail Engineering Limited, [1982] ECLI:EU:C:1982:44. 

Case C-360/90, Arbeiterwohlfahrt der Stadt Berlin e.V. v Monika Bötel, [1992] ECLI:EU:C:1992:246. 

Case C-33/89, Maria Kowalska v Freie und Hansestadt Hamburg, ECLI:EU:C:1990:265. 

Case C-400/93, Specialarbejderforbundet i Danmark v Royal Copenhagen, ECLI:EU:C:1995:155. 

Case C-309/97 Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse, 
ECLI:EU:C:1999:241. 

Case C-381/99, Brunnhofer v Bank der österreichischen Postsparkasse AG, ECLI:EU:C:2001:358. 

Case  C-427/11  Margaret  Kenny  and  Others  v  Minister  for  Justice,  Equality  and  Law  Reform  and 
Others, ECLI:EU:C:2013:122, para. 28.  

Case  C-61/81  Commission  of  the  European  Communities  v  United  Kingdom  of  Great  Britain  and 
Northern Ireland, ECLI:EU:C:1982:258. 

Case C-43/75, Gabrielle Defrenne v Sabena. C-320/00 Lawrence, ECLI:EU:C:2002:498. 

Case C-96/80, Jenkins v Kingsgate (Clothing Productions) Ltd, ECLI:EU:C:1981:80. 

Case C-333/97, Susanne Lewen v Lothar Denda, ECLI:EU:C:1999:512. 

Case  C-  236/09,  Association  Belge  des  Consommateurs Test-Achats  ASBL  and  Others  v  Conseil  des 
ministres, ECLI:EU:C:2011:100. 

Case C-342/12, Worten — Equipamentos para o Lar SA v Autoridade para as Condições de Trabalho 
(ACT), ECLI:EU:C:2013:355. 

Case  C-407/98,  Katarina  Abrahamsson 
ECLI:EU:C:2000:367. 

and  Leif  Anderson 

v  Elisabet  Fogelqvist,  

Case 129/79, Macarthys v Wendy Smith, ECLI:EU:C:1980:103.  

Case C-200/91, Coloroll Pension Trustees Ltd. Russell, ECLI:EU:C:1994:348. 

Case C-196/02 Nikoloudi v Organismos Tilepikoinonion Ellados AE, ECLI:EU:C:2005:141.  

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Annex 8 — Concept and measurement of gender pay discrimination  

Discrepancies  in  pay  do  not  necessarily  point  to  pay  discrimination.  Many  factors  might 
influence  observed  disparities  and  identifying  them  all  is  already  a  challenging  task.  For 
instance, discrimination might result in pay differences only because people are deprived of the 
opportunity to  perform  challenging tasks that would facilitate promotions, or to  participate in 
training,  etc.  Finding  a  causal  link  between  all  these  factors  and  the  disparity  in  pay  is  very 
challenging. Moreover, a significant feature of pay discrimination is its cumulative nature. As 
Justice  Ruth  Bader  Ginsburg,  writing  for  the  dissent,  argued  in  a  controversial  landmark 
decision  of  the  US  Supreme  Court244,  in  contrast  to  specific  discriminatory  acts  such  as 
termination,  ‘[p]ay  disparities  often  occur  in  small  increments’  and  ‘cause  to  suspect  that 
discrimination is at work develops only over time. Moreover, comparative pay information is 
often hidden from the employee’s view.’ 

It is difficult to frame the concept of pay discrimination in this context in order to measure it, 
even  leaving  out  the  broader  implications  of  gender  bias  before  actually  entering  the  labour 
market that might shape educational and career choices.  

Since disparities do not necessarily indicate discrimination, the debate on the gender pay gap is 
largely influenced by opinions on the extent to which it is evidence of discrimination or simply 
a result of individual attributes and choices that might on average differ for women and men245.  

Definition  

Broadly speaking discrimination246 refers to the unequal treatment of people or groups because 
of status characteristics that are unrelated or irrelevant to the outcome. This can happen either 
through a direct differential treatment or an equal treatment based on rules and procedures that 
result  in  indirectly  favouring  one  group  over  another.  This  definition  differs  from  (negative) 
prejudices,  attitudes,  stereotypes  and  sexism  that  might  or  might  not  cause  actual 
discriminatory  behaviour.  The  selection  of  a  specific  definition  for  discrimination  has 
consequences on the methodology applied to identify it and measure it.  

Methods for measuring pay discrimination 

Since discriminatory behaviour is rarely observed directly and identifying association between 
gender  and  pay  disparities  can  be  relatively  straightforward,  it  is  difficult  to  infer  a  causal 
relationship  between  the  two  in  order  to  argue  that  a  discriminatory  treatment  caused  the 
difference in pay.  

A proper measurement  of pay discrimination  should answer the  counterfactual  question:  how 
much would a woman have been paid had she been a man? If the answer shows that she would 
have been paid more it would mean that there is a causal relationship between gender and the 
amount of pay. Unfortunately, answering this question is physically impossible because it is not 
possible to recreate a situation where the only difference between two people is gender.  

There are four main methods to  measure discrimination.  They are used by  a large number of 
disciplines and applied to various types of discrimination, though none is without flaws. These 

244 The lawsuit had been filed by Lilly Ledbetter who had been working for Goodyear for nearly 20 years when she discovered that  she was 
being paid between 15 and 40% less than her male counterparts. The Supreme Court eventually held that the time within which an employee 
may file a discrimination charge ‘is triggered when a discrete unlawful employment practice takes place.’ 
245 See J.Altonji and R. Blank, Race and gender in the labor market, 2017, in J.Altonji and R. Blank (eds.), Handbook of Labor Economics, vol 
3, Part C, Elsevier for an overview of the debate. 
246 See, for instance, the seminal work from Allport, The nature of prejudice, 1954 Reading, Mass.:Addison-Wesley. 

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are:  1.  laboratory  experiments,  2.  field  experiments,  3.  analysis  of  observational  data  and 
natural experiments, and 4. analysis of survey and administrative record reports247. 

Laboratory experiments try to recreate, in a controlled environment, a counterfactual situation 
in  which  one  discrimination  variable  can  be  manipulated.  They  are  helpful  in  identifying  the 
situations and the characteristics of people that trigger discrimination which can then be used as 
working  hypotheses  to  be  tested  on  observational  data.  Similarly,  larger  scale  experiments  in 
the field could provide results that can be more easily generalised. These studies are known as 
audit studies and have been used, for instance, for housing or job-seeking with  a  comparable 
pair  of  people  sending  applications.  They  try  to  approximate  the  counterfactual  situation  by 
assessing  differences  based  on  gender  if  the  pair  are  called  back  by  landlords  when  they 
enquire  about  renting  a  house  or  if  they  are  called  to  an  interview  by  prospective  employers 
when they receive their CVs. The famous analysis carried out by Goldin and Rouse248 of blind 
auditions,  despite  providing  mixed  results,  is  another  example.  These  experiments  can  prove 
causality in their own setting (internal validity), but it is difficult to generalise the results to a 
larger  population  (external  validity)  in  the  absence  of  additional  information.  Generalisation 
would in particular require replicability which is difficult to achieve. 

The most used method to measure discrimination is the statistical analysis of the difference in a 
given outcome (pay) between different groups using a regression model. This implies, like for 
any  econometric  model,  that  the  mechanism  that  causes  discrimination  is  widely  understood 
and that there is a large availability of reliable data. A lack of these two elements translates into 
omitted variable bias and sample selection bias, as in the case of the gender pay gap. Statistical 
decomposition  methods249  (which  can  assume  that  some  variables  (e.g.  education)  have  the 
same effect for women and men or allow for interaction between gender and other variables) 
like the Blinder-Oaxaca used in the support study for this SWD and which is the most common, 
are  most  beneficial  for  descriptive  use  but  they  are  not  capable  of  analysing  causality. 
Economic  modelling  focused  on  the  labour  market,  namely  analysing  individual  actions  as 
result  of  prejudice250  or  of  rational  process  deprived  of  discriminatory  animus  (known  as 
‘statistical discrimination’)251. 

Finally, surveys and administrative records also provide useful data. Surveys are normally done 
through interviews using techniques that allow hidden bias to be discerned. Since attitudes do 
not necessarily translate into behaviours, prevalence of active discrimination can normally not 
be  measured  using  data  on  attitudes,  though  they  can  provide  useful  indications.  Perception 

247  See  the  review  presented  in  National  Research  Council.  2004.  Measuring  Racial  Discrimination.  Panel  on  Methods  for  Measuring 
Discrimination, R.M. Blank, M.  Dabady,  and  C.F.  Citro,  eds.  Committee  on  National  Statistics.  Washington, DC:  The  National  Academies 
Press. 
248  C.  Goldin and  C.  Rouse,  ‘Orchestrating  Impartiality:  The  Impact  of  ‘Blind’  Auditions  on  Female  Musicians’,    The  American  Economic 
Review, Vol. 90, No 4 (Sep., 2000), pp. 715-741. 
249  There  are  three  main  decomposition  techniques:  the  Oaxaca-Blinder  (and  its  extensions),  Juhn-Murphy-Pierce  and  Walby  and  Olsen 
simulation approach, each with its own limitations. For a summary and comparison see Cassells et al. (2009), ‘The impact of sustained gender 
wage gap on the Australian economy’ Report to the office for Women, department of Families, Community services, Housing and indigenous 
affairs, Appendix A. 
250 Becker formalised this model referring to ‘taste’, i.e. at least some members of the dominant group prefer not to interact with members of 
the minority group (G. Becker, (1957 and 1971. The Economics of Discrimination. Series: (ERS) Economic Research Studies). The existence 
of this prejudice is then treated as an individual preference. Even if members of the disadvantaged group have the same productivity as those in 
the other group, the firm will not employ them to avoid the disutility of being in contact with them (if it has to pay them the same wage) or will 
employ them only if it can pay them less. In perfect competition the discriminating employers would be driven out of the market as their profits 
are reduced. 
251 The seminal references of this part of the literature are E. Phelps, The Statistical Theory of Racism and Sexism, 1972 in American Economic 
Review, Vol 62.and K. J. Arrow, (1973), ‘The Theory of Discrimination,’ in Discrimination in Labor Markets, ed. by O. Ashenfelter and A. 
Rees,  Princeton,  NJ:  Princeton  University  Press.  The  literature  originating  from  their  contribution  consider  inequality  to  be  caused  by 
exogenous  differences  between  groups  and  employers’  imperfect  information  about  workers’  productivity.  Since  employers  have  limited 
information about the skills and turnover propensity of applicants they will use an observable characteristic, i.e. gender (or race) to ‘statistically 
discriminate’  among  workers.  For  instance,  based  on  past  experience  employers  might  consider  that  there  is  a  high  likelihood  that  young 
female workers will have lower labour market attachment than men and therefore offer them fewer career incentives (training, positions …). 

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surveys  are  very  important  for  analysing  patterns  of  discrimination  because  of  the  high 
correlation with health issues such as anxiety or depression, and with outcomes other than pay; 
however,  since  events  may  be  misperceived  or  overlooked,  these  surveys  might  over-  or 
underestimate the actual incidence of discrimination. Moreover, perceptions might change over 
time and across countries. Nevertheless, these surveys offer useful insight and opportunities for 
generalisation or to investigate specific aspects related to discrimination.  

The same  applies to  administrative records, such as those of complaints filed for alleged pay 
discrimination.  The  scarcity  of  court  cases  does  not  reflect  the  extent  of  pay  discrimination 
because  it  could  actually  reflect  lack  of  trust  in  the  judicial  system,  flaws  in  the  victims’ 
protection  system,  and  inadequate  length  of  the  limitation  period,  as  this  SWD  has  showed. 
Furthermore, the lack of legal action might simply reflect lack of awareness and information on 
the part of victims  on how much other workers  are paid  for the same  work or work of  equal 
value.  

Empirical findings 

In a 2019 study conducted for Australia by KPMG, gender discrimination was revealed as the 
most  significant  component  contributing  to  the  gender  pay  gap,  accounting  for  39%  of  the 
gender pay gap in 2017252. In the report, gender discrimination is understood as the element of 
the  gender  pay  gap  that  would  remain  if  men  and  women  had  the  same  levels  of  the  other 
factors taken into account253. This is the same percentage linked to the ‘years not working due 
to  interruptions’,  largely  above  the  effect  of  ‘occupational  and  industrial  segregation’  which 
represent  17%  of  the  gap  and  is  on  a  decreasing  trend.  These  interruptions  might  be  due  to 
different  reasons  but  for  women  they  tend  to  be  related  to  the  ‘care-  penalty’,  a  factor  that 
might  also  contribute  to  statistical  discrimination.  In  the  EU,  the  Directive  on  parental  leave 
might  have  a  positive  impact  on  these  aspects;  unfortunately,  as  mentioned  in  Annex  3, 
comparable data at EU level on career breaks are not currently available. 

A  similar  decomposition254  for  the  UK  finds  that  38%  of  the  pay  gap  is  due  to  direct 
discrimination and differences in the labour market motivations and preferences of women as 
compared  with  men  while  gender  differences  in  life-time  working  patterns  account  for  36%. 
The remaining part is due to labour market rigidities (namely segregation) and to a lesser extent 
women attaining fewer qualifications in the past.  

252 KPMG, ‘She is Price(d)less:  The Economics of the Gender Pay  Gap’, summary report, 22 August 2019, p. 7. The study uses the Olsen-
Walby decomposition mentioned above. 
253 In the report, other factors constitute ‘occupational segregation’(males per 100 workers), ‘part-time employment’, ‘age’, ‘employed by the 
Government or NGOs’, ‘years of not working due to interruptions’, ‘industry segregation’ (males per 100 workers), ‘unpaid and carer work’ 
(proxied by housework), and ‘tenure with current employers (years)’. 
254  See  W.K.Olsen  and  S.Walby, Modelling  Gender  Pay  Gaps,  EOC  Working  Paper  Series,  Manchester:  Equal  Opportunities  Commission, 
2004. 

97