COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE 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

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  EN 

   EUROPEAN COMMISSION  Brussels, 5.3.2020  SWD(2020) 51 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE 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) 50 final}  
 
 
EXECUTIVE SUMMARY  

This document evaluates the EU legal framework for equal pay between women and men for 
equal work or work of equal value. 

This equal pay a principle is enshrined in the European Treaties since 1957 (today Article 157 
TFEU) and covered by EU law. In 2006, a number of existing directives on gender equality in 
matters of employment and occupation were ‘recast’ and consolidated into a single Directive 
2006/54/EC  (the  Recast  Directive)  that  also  incorporated  relevant  case-law  of  the  Court  of 
Justice  of  the  European  Union.  In  2014,  the  Directive  was  complemented  by  Commission 
Recommendation 2014/124/EU on pay transparency.  

Despite  the  legislation,  there  is  still  a  significant  gap  between  men’s  and  women’s  gross 
hourly earnings (known as the ‘gender pay gap’) of around 16% on average, ranging from 4% 
in Romania to 26% in Estonia1. The indicator measures the difference between average gross 
hourly  earnings  of  male  paid  employees  and  of  female  paid  employees  as  a  percentage  of 
average  gross  hourly  earnings  of  male  paid  employees.  It  combines  possible  differences  in 
pay  between  men  and  women  for  ‘equal  work  or  work  of  equal  value’,  with  the  impact  of 
differences in the average characteristics of men and women in the labour market. It therefore 
gives an overall picture of gender inequalities in terms of pay and measures a concept broader 
than the concept of equal pay for equal work. 

Although the gender pay gap can only be partially, and unquantifiably, attributed to direct and 
indirect  pay  discrimination,  the  persistence  of  the  gap  at relatively  high  levels  suggests  that 
discrimination  might  not  be  a  negligible  factor.  Qualitative  findings,  such  as  legal  cases 
brought to courts and public surveys, support this hypothesis. The Commission has therefore 
evaluated the existing EU legal framework according to the regulatory fitness criteria. 

The evaluation finds that the Recast Directive and the Pay Transparency Recommendation are 
important in that they implement the legal principle that women and men are entitled to equal 
pay  for  equal  work  or  work  of  equal  value,  and  provide  measures  to  ensure  the  effective 
application of that principle. 

There  are  still  some  problems,  however,  with  the  effective  implementation  of  equal  pay  in 
practice. The following findings emerged from the evaluation. 

  Definitions:  Existing  legal  concepts  such  as  ‘pay’  and  ‘work  of  equal  value’  are  not 
defined  uniformly  across  national  legislation,  and  require  the  assessment  of  factors  that 
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 
claims more complex for litigants and courts to manage. Greater clarity on how to apply 
existing concepts could be helpful.  

  Pay transparency: Lack of transparency about pay within organisations means that pay 
discrimination  goes  undetected  or,  where  suspected,  is  difficult  to  prove.  Binding 
measures could improve pay transparency, encouraging organisations to review their pay 
structures  to  provide  for  equal  pay  for  women  and  men  for  the  same  work  and  work  of 
equal  value,  and  enabling  victims  of  discrimination  to  bring  claims.  Equality  bodies, 
labour inspectorates and trade unions can play an important role in this context.  

1 Figures are based on 28 Member States, see Eurostat (2019), Gender pay gap statistics, available at: https://ec.europa.eu/eurostat/statistics-
explained/index.php/Gender_pay_gap _statistics 

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  Burden  of  proof:  Although  it  is  necessary  only  to  establish  a  presumption  of 
discrimination before the burden of proof shifts to the employer, it is not always easy for 
victims  and  courts  to  know  how  to  establish  this.  The  evaluation  suggests  that  pay 
transparency measures have the potential to support the use of the reverse of the burden of 
proof, by helping workers determine the average pay for women and men performing the 
same  work  or  work  of  equal  value.  Enabling  workers to  provide  evidence  which  allows 
discrimination  to  be  presumed  would  swiftly  trigger  the  reverse  burden  of  proof  for  the 
employer.  

  Victim support: Building an equal pay case is a complex and therefore costly task. For 
many victims, it is too difficult to bring a claim without legal representation or support. 
They may also fear further victimisation (even though the Recast Directive prohibits it). 
The  fact  that  victims  are  unlikely  to  bring  claims  reduces  the  deterrent  effect  of  the 
legislation.  Equality  bodies  could  be  better  equipped  to  assist  victims  of  discrimination, 
either by bringing claims on their behalf or by being empowered to investigate cases and 
take decisions. Better legal aid could also be made available to victims. 

  Compensation and other sanctions: Compensation awards are not high enough to have a 
deterrent  effect  on  employers.  Sanctions  could  be  improved  to  increase  their  deterrent 
effect. 

  Gender-neutral job evaluation and classification systems: Such systems help detecting 
indirect  pay  discrimination  related  to  the  undervaluation  of  jobs  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. Nevertheless, the use of gender-neutral 
job evaluations and classifications as part of wage determination is generally limited in the 
private sector. 

  Awareness  raising:  Lack  of  awareness  about  equal  pay  rights,  and  the  right  not  to  be 
victimised  for  bringing  a  claim,  means  that  injustices  are  more  likely  to  continue. More 
needs to be done to raise awareness of these rights. 

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