A comparative analysis of gender equality law in Europe 2021 : the 27 EU Member States, Albania, Iceland, Liechtenstein, Montenegro, North Macedonia, Norway, Serbia, Turkey and the United Kingdom compared.
Date: 2022-02-16
Institutions: Directorate-General for Justice and Consumers
Subjects: Albania, EU Member State, Iceland, Liechtenstein, Montenegro, North Macedonia, Norway, Serbia, Türkiye, United Kingdom, anti-discriminatory measure, application of EU law, comparative analysis, gender equality, participation of women, position of women, report, sexual discrimination, women's rights

European network of legal experts in 
gender equality and non-discrimination

A comparative analysis of  
gender equality law in Europe

2021

Justice 
and Consumers

EUROPEAN COMMISSION

Directorate-General for Justice and Consumers 
Directorate D — Equality and Union citizenship 
Unit D.1 Non-discrimination and Roma coordination
Unit D.2 Gender Equality

European Commission
B-1049 Brussels

EUROPEAN COMMISSION

A comparative analysis of  
gender equality law in Europe 
2021

The 27 EU Member States, Albania, Iceland, Liechtenstein, 
Montenegro, North Macedonia, Norway, Serbia, Turkey and 
the United Kingdom compared

Prepared by 
Birte Böök, Susanne Burri, Linda Senden and Alexandra Timmer
for the European network of legal experts in gender equality 
and non-discrimination

February 2022

Based on information current on 1 January 2021

2022

Directorate-General for Justice and Consumers

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This document has been prepared for the European Commission; however, it reflects the views only of 
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Luxembourg: Publications Office of the European Union, 2022

ISBN 978-92-76-45878-4
ISSN 2599-9184
doi:10.2838/63140
Catalogue number DS-BC-22-001-EN-N

© European Union, 2022

Contents

INTRODUCTION 
1  GENERAL LEGAL FRAMEWORK 

1.1  Constitution 
1.2  Equal treatment legislation 
IMPLEMENTATION OF CENTRAL CONCEPTS 
2.1  Sex/gender/transgender 

2 

2.1.1  Definition of ‘gender’ and ‘sex’ 
2.1.2  Protection of transgender, intersex and non-binary persons 

2.2  Direct sex discrimination 

2.3 

2.2.1  Explicit prohibition  
2.2.2  Prohibition of pregnancy and maternity discrimination 
2.2.3  Specific difficulties 
Indirect sex discrimination 
2.3.1  Explicit prohibition 
2.3.2  Statistical evidence 
2.3.3  Application of the objective justification test 
2.3.4  Specific difficulties 

2.4  Multiple discrimination and intersectional discrimination 
2.5  Positive action 

2.5.1  Definition and approach 
2.5.2  Specific difficulties  
2.5.3  Measures to improve the gender balance on company boards 
2.5.4  Positive action measures to improve the gender balance in other areas 

2.6  Harassment and sexual harassment 

2.6.1  Definition and explicit prohibition of harassment and sexual harassment 
2.6.2  Scope of the prohibition of harassment and sexual harassment 
2.6.3  Understanding of (sexual) harassment as discrimination 
2.6.4  Specific difficulties  
2.7 
Instruction to discriminate 
2.8  Other forms of discrimination 
2.9  Evaluation of implementation 
	EQUAL	PAY	AND	EQUAL	TREATMENT	AT	WORK	(ARTICLE	157	ON	THE	TREATY	ON	THE	
FUNCTIONING	OF	THE	EUROPEAN	UNION	(TFEU)	AND	RECAST	DIRECTIVE	2006/54)	
3.1  Equal pay 

3	

3.1.1  Implementation in national law 
3.1.2  Definition in national law 
3.1.3  Explicit implementation of Article 4 of Recast Directive 2006/54 
3.1.4  Permissibility of pay differences  
3.1.5  Requirements for comparators 
3.1.6  Existence of parameters for establishing the equal value of the work performed 
3.1.7  Job evaluation and classification systems 
3.1.8  Wage transparency 
3.1.9  Other initiatives to enhance transparency and to close the gender pay gap 
3.1.10 Remaining specific difficulties 

3.2  Equal treatment at work; access to work and working conditions 

3.2.1  The personal and material scope 
3.2.2  Exceptions  
3.2.3  Particular difficulties 

3

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27
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46
48
61
64
69
70
71
73

4	

	PREGNANCY,	MATERNITY,	PATERNITY,	PARENTAL	AND	OTHER	TYPES	OF	LEAVE	 
RELATED	TO	WORK-LIFE	BALANCE	
4.1  General (legal) context 
4.2  Pregnancy and maternity protection 

4.2.1  Definitions in national law and obligation to inform employer 
4.2.2  Protective measures 
4.2.3  Prohibition of dismissal 
4.2.4  Redundancy and payment during maternity leave 
4.2.5  Employer’s obligation to substantiate a dismissal  

4.3  Maternity leave 

4.3.1  Duration, payment and share of maternity leave 
4.3.2  Conditions for eligibility 
4.3.3  Right to return to the same or an equivalent job 

4.4  Adoption leave 
4.5  Parental leave 

4.5.1  Duration, payment and transferability of parental leave 
4.5.2  Right to return to the same or an equivalent job 
4.5.3  Protection against less favourable treatment or dismissal.  

4.6  Paternity leave 
4.7  Time off and care leave 
4.8  Leave in relation to surrogacy 
4.9  Flexible working-time arrangements 
4.10  Evaluation and implementation 
4.11  Remaining issues 

4.11.1  COVID-19 and work-life balance issues 
4.11.2  Specific COVID-19-related work-life balance measures at national level 
4.11.3  Future prospects 

5	 OCCUPATIONAL	PENSION	SCHEMES	(CHAPTER	2	OF	DIRECTIVE	2006/54)	

5.1  Direct and indirect sex discrimination in occupational social security schemes 
5.2  Personal scope 
5.3  Material scope 
5.4  Exclusions from material scope  
5.5  Case law and examples of sex discrimination 
5.6  Sex as an actuarial factor 
5.7  Difficulties 

6	 STATUTORY	SCHEMES	OF	SOCIAL	SECURITY	(DIRECTIVE	79/7/EEC)	

Implementation of the principle of equal treatment  

6.1 
6.2  Personal scope 
6.3  Material scope 
6.4  Derogations from material scope  
6.5  Sex as an actuarial factor 
6.6  Difficulties 
	SELF-EMPLOYED	WORKERS	(DIRECTIVE	2010/41/EU	AND	SOME	RELEVANT	 
PROVISIONS	OF	THE	RECAST	DIRECTIVE)	
7.1 
7.2  Personal scope 

Implementation of Directive 2010/41/EU 

7	

7.2.1  Scope and definitions 
7.2.2  Different categories of self-employed 
7.2.3  Recognition of life partners 

7.3  Material scope 
7.4  Positive action 
7.5  Social protection 
7.6  Maternity benefits 

4

76
77
83
84
85
87
89
90
91
91
99
100
101
102
105
109
110
111
114
128
129
137
139
139
142
147
149
149
149
150
150
150
152
153
154
154
155
155
156
158
159

161
161
162
162
162
162
163
163
164
164

7.7  Occupational social security 

7.7.1  Implementation of provisions regarding occupational social security 
7.7.2   Exceptions for self-employed workers regarding matters of occupational  

social security 

7.8  Prohibition of discrimination in the access to self-employment 

8	 GOODS	AND	SERVICES	(DIRECTIVE	2004/113)	
9	 VIOLENCE	AGAINST	WOMEN	AND	DOMESTIC	VIOLENCE		
10	 	COMPLIANCE	AND	ENFORCEMENT	ASPECTS	(HORIZONTAL	PROVISIONS	OF	 

ALL	DIRECTIVES)	
10.1   Victimisation 
10.2   Burden of proof 
10.3   Gender mainstreaming 
10.4   Remedies and sanctions  
10.5   Access to courts 
10.6   Equality bodies 
10.7   Social partners  
10.8   Collective agreements 

11	 OVERALL	ASSESSMENT:	LAW	ON	THE	BOOKS	VERSUS	LAW	IN	PRACTICE		
ANNEX	1	–	EU	GENDER	EQUALITY	DIRECTIVES	

Directive 79/7/EEC 
Directive 92/85/EEC 
Directive 2004/113/EC 
Directive 2006/54/EC 
Directive 2010/18/EU 
Directive 2010/41/EU 
Directive 2019/1158/EU 
ANNEX	2	–	EQUALITY	BODIES	

165
165

165
165
167
174

176
176
177
178
182
187
191
194
196
199
202
202
202
203
203
204
204
204
205

5

Members of the European network of 
legal experts in gender equality and 
non-discrimination

Management team

General coordinator

Jos Kösters

Human European Consultancy

Specialist coordinator  
gender equality law

Content coordinator  
gender equality law

Specialist coordinator  
non-discrimination law

Linda Senden

Utrecht University

Alexandra Timmer

Utrecht University

Isabelle Chopin

Migration Policy Group

Project manager

Yvonne van Leeuwen-Lohde

Human European Consultancy

Content managers 
gender equality law

Franka van Hoof
Birte Böök

Utrecht University

Catharina Germaine

Migration Policy Group

Content manager 
non-discrimination law

Senior experts

Senior expert on gender equality law
Senior expert on age
Senior	expert	on	sexual	orientation/trans/intersex	people
Senior expert on racial or ethnic origin
Senior expert on EU and human rights law
Senior expert on social security
Senior expert on religion or belief
Senior	expert	on	EU	law,	CJEU	case	law,	sex,	gender	identity	 
and gender expression in relation to trans and intersex people
Senior expert on disability

Susanne Burri
Elaine Dewhurst
Peter Dunne
Lilla Farkas
Christopher McCrudden
Frans Pennings
Isabelle Rorive
Christa Tobler

Lisa Waddington

6

National experts

Albania

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czechia

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Non-discrimination

Irma Baraku

Dieter Schindlauer

Gender

Entela Baci 

Marion Guerrero***

Sébastien Van Drooghenbroeck*

Nathalie Wuiame

Margarita S. Ilieva

Ines Bojić

Corina Demetriou

Jakub Tomšej 

Pia Justesen

Mari-Liis Sepper**

Rainer Hiltunen

Sophie Latraverse

Matthias Mahlmann

Athanasios Theodoridis

András Kádár

Genoveva Tisheva

Adrijana Martinović

Vera Pavlou

Kristina Koldinská

Natalie Videbaek Munkholm

Anu Laas

Kevät Nousiainen

Marie Mercat-Bruns

Jule Mulder****

Panagiota Petroglou

Lídia Hermina Balogh

Gudrun D. Gudmundsdottir

Herdís Thorgeirsdóttir

Judy Walsh

Chiara Favilli

Anhelita Kamenska

Liechtenstein

Patricia Hornich

Lithuania

Gediminas Andriukaitis and  
Monika Guliakaitė

Luxembourg

Tania Hoffmann

Malta

Montenegro

Netherlands

Tonio Ellul

Maja Kostić-Mandić

Karin de Vries

North Macedonia

Biljana Kotevska

Lene Løvdal

Łukasz Bojarski

Frances Meenan

Simonetta Renga

Kristīne Dupate

Nicole Mathé

Tomas Davulis

Nicole Kerschen

Romina Bartolo

Vesna Simovic-Zvicer

Marlies Vegter

Biljana Kotevska

Marte Bauge

Anna Cybulko

Norway

Poland

Portugal

Romania

Serbia

Slovakia

Slovenia

Spain

Sweden

Turkey

United Kingdom

Dulce Lopes and Joana Vicente

Maria do Rosário Palma Ramalho

Romanița Iordache

Ivana Krstić Davinic

Vanda Durbáková

lustina Ionescu

Ivana Krstić Davinic

Zuzana Magurová

NeŽa KogovŠek Šalamon

Tanja Koderman Sever

Fernando Camas Roda

Dolores Morondo Taramundi

Paul Lappalainen

Jenny Julén Votinius

Ulaş Karan

Lucy Vickers

Kadriye Bakirci

Rachel Horton

Emmanuelle Bribosia was the expert during the reporting period for this report.
* 
** 
Vadim Poleshchuk was the expert during the reporting period for this report.
***  Martina Thomasberger was the expert during the first report period of this report.
****  Ulrike Lembke was the expert during the reporting period for this report.

7

Introduction

This report provides a general overview of the ways in which EU gender equality law has been implemented 
in the domestic laws of the 27 Member States of the European Union, as well as Iceland, Liechtenstein 
and Norway (the EEA countries), the United Kingdom and five candidate countries (Albania, Montenegro, 
North Macedonia, Serbia and Turkey).1 The analysis is based on the country reports written by the gender 
equality law experts of the European equality law network (EELN).2 At the same time, the report explains 
the  most  important  elements  of  the  EU  gender  equality  acquis.  The  term  ‘EU  gender  equality  acquis’ 
refers to all the relevant EU Treaty and EU Charter of Fundamental Rights provisions, legislation and case 
law of the CJEU in relation to gender equality. 

The  development  of  EU  gender  equality  law  has  been  a  step-by-step  process.  In  1957,  the  Treaty 
establishing the European Economic Community (EEC), the origin of the current EU, contained only one 
single provision (Article 119 EEC Treaty, nowadays Article 157 Treaty on the Functioning of the European 
Union ‘TFEU’) on gender equality, namely the principle of equal pay between men and women for equal 
work. 

Since then many directives have been adopted which prohibit discrimination on the grounds of sex. In 
chronological order these are the Directive on equal pay for men and women (75/117/EEC), the Directive 
on equal treatment of men and women in employment (76/207/EEC, amended by Directive 2002/73/EC), 
both  now  repealed  and  replaced  by  Recast  Directive  2006/54/EC,  the  Directive  on  equal  treatment  of 
men and women in statutory schemes of social security (79/7/EEC), the Directive on equal treatment of 
men and women in occupational social security schemes (86/378/EEC, amended by Directive 96/97/EC 
and  now  repealed  and  replaced  by  Recast  Directive  2006/54/EC),  the  Directive  on  equal  treatment  of 
men and women engaged in an activity, including agriculture, in a self-employed capacity (86/613/EEC, 
repealed  and  replaced  by  Directive  2010/41/EU),  the  Pregnant  Workers’  Directive  (92/85/EEC),  the 
Parental Leave Directive (96/34/EEC, repealed and replaced by Directive 2010/18/EU), the Directive on 
equal treatment of men and women in the access to and the supply of goods and services (2004/113/EC) 
and  the  aforementioned  so-called  Recast  Directive  on  sex  equality  in  employment  and  occupation 
(2006/54/EC). The latest addition is the Work-Life Balance Directive (2019/1158/EU), which will repeal 
Directive  2010/18/EU  with  effect  from  2  August  2022.  For  your  convenience,  the  weblinks  to  the  six 
EU gender equality law directives currently in force (plus Directive EU 2019/1158) are attached to this 
report as Annex 1.

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

1 

2 
3 

4 

The report builds on Böök, B., Burri, S., Senden, L., Timmer, A. (2020), A comparative analysis of gender equality law in Europe, 
European Commission, available at: https://www.equalitylaw.eu/downloads/5400-a-comparative-analysis-of-gender-
equality-law-in-europe-2020-1-81-mb. The report also considers Burri, S. (2018), EU gender equality law – update 2018, 
European Commission, available at: https://www.equalitylaw.eu/downloads/4767-eu-gender-equality-law-update-2018-
pdf-444-kb. 
All gender equality country reports are available on the EELN website: http://www.equalitylaw.eu/country.
See Consolidated Version of the Treaty on European Union [2008] OJ C115/13 (TEU), Article 1, which provides ‘(…) The 
Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter 
referred to as ‘the Treaties’). Those two Treaties shall have the same legal value. The Union shall replace and succeed the 
European Community.’ 
See Article 6(1) TEU.

8

Introduction

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

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

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

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

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

In addition, the Charter of Fundamental Rights of the EU prohibits discrimination on any ground, including 
sex  (Article  21);6  it  recognises  the  right  to  gender  equality  in  all  areas,  and  is  thus  not  limited  only 
to  employment,  and  it  also  recognises  the  possibility  of  positive  action  for  its  promotion  (Article  23). 
Furthermore, it also defines rights related to family protection and gender equality. The reconciliation of 
family/private life with work is an important aspect of the Charter; the Charter guarantees, inter alia, the 
‘right to paid maternity leave and to parental leave’ (Article 33). Since the entry into force of the Lisbon 
Treaty, the Charter has become a binding catalogue of EU fundamental rights (see Article 6(1) TEU). The 
Charter applies to the EU institutions, bodies, offices and agencies, and to the Member States when they 
are implementing Union law (Article 51(1) of the Charter),7 i.e. when they are acting ‘within the scope’ of 
Union law.8 

Another source of EU gender equality law is the case law of the Court of Justice of the EU (CJEU).9 This 
Court  has  played  a  very  important  role  in  the  field  of  equal  treatment  between  men  and  women,  by 
ensuring that individuals can effectively invoke and enforce their right to gender equality. Similarly, it has 
delivered important judgments interpreting EU equality legislation and relevant Treaty provisions. 

This report will discuss how the above-mentioned Treaty provisions and the directives are implemented 
at  the  national  level.  As  this  report  will  show,  transposition  has  been  carried  out  in  various  ways:  by 
amending  relevant  national  legislation  (such  as  Labour  Codes),  by  adopting  legislation  relating  to 
employment and social security legislation, and/or by adopting specific acts on gender equality and/or 
non-discrimination. The weblinks to the EU directives which are discussed in this report are annexed to 
the report. This comparative analysis provides a state-of-the art overview of the implementation of EU 

5 

6 

7 

8 
9 

See also Article 29 of the Council Directive 2006/54/EC 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) (Recast 
Directive), OJ L 204, 26.07.2006, pp. 23-36.
However, the scope of the prohibition of sex discrimination is limited, according to the accompanying explanations to the 
Charter, see Explanations relating to the Charter of Fundamental Rights, 2007/C 303/02. 
See Koukoulis-Spiliotopoulos, S. (2008) ‘The Lisbon Treaty and the Charter of Fundamental Rights: maintaining and 
developing the acquis in gender equality’, European gender equality law review No. 1/2008, pp. 15-24; available at: https://www.
equalitylaw.eu/downloads/2790-european-gender-equality-law-review-1-2008 and Ellis, E. (2010), ‘The impact of the Lisbon 
Treaty on gender equality’, European gender equality law review No. 1/2010, pp. 7-13; available at: https://op.europa.eu/en/
publication-detail/-/publication/28979eb1-b8a4-48b5-8786-83960b483554/language-en/format-PDF/source-search.
Judgment of 26 February 2013, Åkerberg Fransson, C-617/10, EU:C:2013:105.
Until the entry into force of the Lisbon Treaty: the European Court of Justice (ECJ). In this report, reference is made to the 
Court of Justice of the EU (CJEU or Court), including in cases pre-dating the Lisbon Treaty.

9

gender equality law and the most recent developments in this area. It discusses the most important topics 
of EU gender equality law, namely core concepts such as direct and indirect discrimination and (sexual) 
harassment; equal pay and equal treatment at work; maternity, paternity, parental and other types of 
care leave; occupational pension schemes; statutory schemes of social security; self-employed workers; 
equal  treatment  in  relation  to  goods  and  services;  violence  against  women  in  relation  to  the  Istanbul 
Convention; and enforcement and compliance issues. 

It  would  also  be  remiss  not  to  mention  that  two  major  developments  relevant  to  EU  gender  equality 
occurred  during  2020.  One  of  these  is  the  adoption  of  the  European  Commission’s  Gender  Equality 
Strategy 2020-2025,10 which provides a roadmap for the Commission’s plans to tackle gender inequalities 
and touches on emerging threats to gender equality such as the climate and the digital sphere. The other 
development is, of course, the outbreak of the global COVID-19 pandemic, which is already proving to 
have an impact on gender equality in the EU.11 This report also discusses the legal responses that have 
been made at the national level to mitigate the damaging effects of the pandemic on gender equality.

10 

11 

European Commission (2020), A Union of Equality: Gender Equality Strategy 2020-2025, available at: https://eur-lex.europa.
eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020DC0152&from=EN.
For a first mapping of the gendered impact of the COVID-19 crisis, see Böök, B., Van Hoof, F., Senden, L., Timmer, A., (2020) 
‘Gendering the COVID-19 crisis: a mapping of its impact and call for action in light of EU gender equality law and policy’, 
European equality law review No. 2/2020, pp. 20-44, available at: https://www.equalitylaw.eu/downloads/5300-european-
equality-law-review-2-2020-pdf-1-446-kb.

10

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 20211  General legal framework

1.1  Constitution

Sex discrimination is explicitly prohibited in the Constitutions of all countries under review, apart from 
Denmark, Liechtenstein and the United Kingdom. 

In the case of the United Kingdom, this is explained by the fact that the constitution is unwritten and so 
by definition contains no articles dealing with non-discrimination. The Human Rights Act 1998, however, 
partially incorporates the European Convention on Human Rights (ECHR) into domestic law, and by so 
doing gives Article 14 ECHR – which includes a prohibition of sex discrimination – quasi-constitutional 
force. This appears still to be the case now that the United Kingdom has left the EU.

In addition, a large number of countries (Albania, Austria, Belgium, Croatia, Estonia, Finland, France, 
Germany,  Greece,  Hungary,  Italy,  Liechtenstein,  Lithuania,  Luxembourg,  Malta,  Montenegro, 
Poland, Portugal, Romania, Serbia, Slovenia, Spain, Turkey) have also adopted provisions pertaining 
to equality between men and women in their Constitutions. 

In most countries these constitutional provisions on equality between men and women and the prohibition 
of sex discrimination can be invoked horizontally, meaning between private parties. The exceptions are, 
Ireland, Italy, Latvia, Liechtenstein, Montenegro, the Netherlands, Slovakia and Sweden, where 
this is not possible. In a few countries (Belgium, Germany, Lithuania) horizontal application is a subject 
of debate. Moreover, in Austria, the relevant national constitutional provision does not have horizontal 
effect according to prevailing doctrine. However, the state has an obligation to protect individuals from 
discrimination  by  adopting  adequate  legislation;  if  it  fails  to  do  so,  the  courts  may  rely  on  general 
principles, drawn mostly from private law, to interpret norms or contracts in ways that are compatible 
with good morals (gute Sitten), especially in cases of economic or factual imbalance between the parties. 
This, in effect, can lead to an indirect horizontal application of fundamental rights. 

1.2  Equal treatment legislation

All countries apart from Latvia have enacted specific equal treatment legislation. Until recently Turkey 
was  another  exception,  but  with  the  adoption  in  2016  of  the  Act  on  the  Human  Rights  and  Equality 
Institution,  Turkey  now  has  specific  equal  treatment  legislation.  In  some  countries,  equal  treatment 
between men and women is part of a broader Anti-discrimination Act that also relates to other grounds 
(e.g. Czechia, Hungary, Ireland, Poland, Romania, Slovakia, Slovenia, Sweden, United Kingdom). 
Other  countries  have  both  an  Anti-discrimination  Act  (which  sometimes  also  includes  a  prohibition  of 
sex  discrimination)  and  a  Gender  Equality  Act  (e.g.  Albania,  Belgium,  Bulgaria,  Croatia,  Denmark, 
Finland,  Greece,  Lithuania,  Montenegro,  Netherlands  North  Macedonia,  Romania,  Serbia).  The 
Bulgarian Gender Equality Law was promulgated in 2016, however by the end of 2017 only minor steps 
had been taken to implement the law. Norway adopted a new act relating to equality and the prohibition 
of discrimination in 2017, which entered into force on 1 January 2018. It unites all four previously existing 
laws on equality and non-discrimination in one law. Iceland adopted a new Gender Equality Act in 2020, 
which entered into force on 6 January 2021.

11

2 

Implementation of central concepts

This  chapter  discusses  how  central  concepts  of  EU  gender  equality  law  have  been  transposed  in  the 
countries under review. Some of the concepts discussed in this chapter are defined in the EU gender equality 
law  directives,  namely  direct  and  indirect  sex  discrimination;  and  harassment  and  sexual  harassment. 
Other  concepts  have  not  been  explicitly  defined  in  the  Directives,  yet  they  are  crucial  elements  of  EU 
gender  equality  law,  such  as  the  concepts  of  sex,  gender  and  transgender,  as  well  as  the  concept  of 
positive action. Overall, the countries under review have faithfully and often literally transposed the EU 
concepts into national legislation. Yet, as the analysis below will show, some difficulties remain at the level 
of transposition. Most of the difficulties relate to the level of enforcement.

2.1	 Sex/gender/transgender

2.1.1	 Definition	of	‘gender’	and	‘sex’

EU  law  does  not  provide  definitions  of  the  concepts  of  ‘sex’,  ‘gender’  and  ‘transgender’,  and  does  not 
distinguish clearly between sex and gender.12 Likewise, very few countries define the concepts of ‘sex’, 
‘gender’  or  ‘transgender’  in  their  legislation.  Albania,  Finland,  Hungary,13  Iceland,  Montenegro, 
Romania, Serbia and Sweden are exceptions. 

In the Albanian Law on Gender Equality, ‘“Gender” refers to the opportunities and the social attributes 
related with being a woman or man, as well as the relations between them’ (Article 4(2)). In the Finnish 
Act  on  Equality  between  Women  and  Men,  a  new  subsection  (Section  3(5))  defines  what  is  meant  by 
gender identity and expression of gender. In the new Icelandic Gender Equality Act, Article 1 states that 
‘sex’ refers to women, men and people who are officially registered as gender neutral. Article 10 of the 
Serbian Gender Equality Act defines both sex and gender: ‘sex’ relates to the biological features of a 
person, while ‘gender’ means the socially established roles, position and status of women and men in 
public and private life from which, due to social, cultural and historic differences, discrimination ensues on 
the basis of biological membership of a sex. Romania recently (2015) introduced definitions of sex and 
gender, as well as ‘gender stereotypes’ in its Gender Equality Law, whereby gender is understood to mean 
the combination of roles, behaviours, features and activities that society considers to be appropriate for 
women and for men. In Sweden, Chapter 1 Section 5.1 of the Discrimination Act defines sex as the fact 
‘that someone is a woman or a man’. In the United Kingdom, more specifically in Great Britain, there is 
a partial definition of ‘sex’ in Section 11 of the Equality Act 2010, which provides that, ‘In relation to the 
protected characteristic of sex— (a) a reference to a person who has a particular protected characteristic 
is a reference to a man or to a woman’. 

Hungary recently amended its Registry Act to include the concept of ‘birth sex’ defined as ‘biological sex 
assigned  on  the  basis  of  primary  sexual  characteristics  and  chromosomes’.  The  reasoning  behind  the 
amendment states that ‘Sex14 is not conceptualised in the current legislation, given that the determination 
of  sex  is  based  on  biological  facts.  It  can  be  determined  based  on  primary  sex  characteristics  and 
chromosomes’.15

12 

13 

14 

For discussion see Lembke, U. (2016) ‘Tackling sex discrimination to achieve gender equality? Conceptions of sex and 
gender in EU non-discrimination law and policies’, European equality law review No, 2/2016, pp. 46-55; available at:  
https://www.equalitylaw.eu/downloads/3938-european-equality-law-review-2-2016.
The Hungarian legislation includes only one relevant definition, the one on ‘birth sex’ in the Act on Civil Registration 
Procedure from 2020.
It should be noted that the Hungarian language does not differentiate between the concepts of ‘sex’ and ‘gender’, the same 
noun used to refer to both. In Hungarian social science literature, the adjective ‘social’ is attached to this noun to refer to 
gender, and the adjective ‘biological’ is attached to the same noun to refer to sex.

15  Hungary, Balogh L.H. (2021) Hungary – Country report gender equality, European Commission, available at: https://www.

equalitylaw.eu/downloads/5451-hungary-country-report-gender-equality-2021-1-62-mb, p. 14. 

12

Implementation of central concepts

A  few  experts  note  that  since  the  entry  into  force  of  the  Istanbul  Convention  in  their  country,  the 
Convention’s definition of gender has entered the domestic legal order (e.g. Croatia, Turkey).16 

2.1.2	 Protection	of	transgender,	intersex	and	non-binary	persons17

Legal gender recognition, giving trans and intersex people the possibility to obtain official acknowledgment 
of their preferred gender, is often the gateway to obtaining equality rights.18 In several countries, however, 
there is no specific legal framework in place to regulate gender recognition (e.g. Cyprus (though legislation 
is pending), Latvia, Liechtenstein), or recognition is incomplete (Bulgaria). 

It  is  well-established  in  the  case  law  of  the  Court  of  Justice,19  and  subsequently  also  in  Recital  3  of 
Recast Directive 2006/54/EC, that discrimination arising from the gender reassignment of a person falls 
within the prohibition of sex discrimination. In line with this, several countries have explicitly codified the 
prohibition of discrimination due to gender reassignment, namely Belgium  and Malta  (where gender 
identity or expression are considered separately as grounds for sex discrimination), Bulgaria, Finland, 
Greece, Luxembourg, Montenegro, Portugal, Slovakia and the United Kingdom. In most of these 
countries this is part of a broader prohibition of gender identity and gender expression discrimination.

Many countries have a broad prohibition of discrimination on the ground of gender identity (and often also 
gender expression) in their legislation (e.g. Albania, Belgium, Croatia, Czechia (where the term ‘gender 
identification’  is  used,  which  according  to  the  expert  means  the  same  as  gender  identity),  Denmark 
(where the term gender is used in the legislation, but where the preparatory works state that gender 
includes gender identity), Finland, France, Greece (through Acts 4604/2019 and Act 4443/2016, the 
latter transposing Directives 2000/43/EC and 2000/78/EC), Hungary, Luxembourg, Malta, Montenegro, 
Netherlands,  North  Macedonia  (where  the  new  Anti-Discrimination  Act  of  2020  for  the  first  time 
explicitly includes gender identity as a prohibited ground of discrimination), Norway, Portugal, Serbia, 
Slovenia, Sweden). In Finland, Section 3 of the Act on Equality of 2014, defines gender identity as ‘the 
person’s own experience of (his or her) gender’, and expression of gender as ‘articulating one’s gender 
by  clothing,  behaviour  or  in  some  other  similar  manner’.  Maltese  law  includes  definitions  of  ‘gender 
expression’ and ‘gender identity’. Act LXI of 2016 furthermore introduced the notion of ‘lived gender’, 
which is defined as referring to each person’s gender identity and its public expression over a sustained 
period of time. In the Netherlands, an amendment to the General Equal Treatment Law was adopted 
in 2018, specifying that the term ‘gender’ also includes sex characteristics, gender identity and gender 
expression.

A few experts are of the opinion that their national legislatures should amend the legislative framework 
regarding  transgender  and  gender  identity  discrimination  or  create  such  a  framework  (e.g.  Estonia, 
Poland). 

In several countries important legislative or judicial developments have recently taken place and/or are 
noteworthy:

16  Gender is defined in Article 3(c) of the Council of Europe Convention on preventing and combating violence against 

women and domestic violence (Istanbul Convention) CETS No. 210, to mean ‘the socially constructed roles, behaviours, 
activities and attributes that a given society considers appropriate for women and men’. It should be noted that 
in Bulgaria, a Constitutional Court judgment from October 2021 has built on its previous ruling on the Istanbul 
Convention to interpret ‘sex’ as having to be understood only in its biological sense. https://www.constcourt.bg/bg/Acts/
GetHtmlContent/5aca41e4-659e-42dc-80a5-c3f31746898b. 
See Van den Brink, M., Dunne, P. (2018) Trans and intersex equality rights in Europe – a comparative analysis, European 
Commission, available at: https://www.equalitylaw.eu/downloads/4739-trans-and-intersex-equality-rights-in-europe-a-
comparative-analysis-pdf-732-kb.
Van den Brink, M., Dunne, P., (2018) Trans and intersex equality rights in Europe – a comparative analysis, European 
Commission, p. 55.
Judgment of 30 April 1996, P v S and Cornwall County Council, C-13/94, EU:C:1996:170.

17 

18 

19 

13

 –

 –

 –

 –

 –

 –

In 2017, the Federal Constitutional Court of Germany issued a landmark judgment that clarified that 
the prohibition of sex discrimination covers gender identity, and that this also protects people who 
identify as neither male nor female. The court decided that the birth register must allow for a ‘third 
gender’. Subsequently, on 13 December 2018, the federal parliament passed the Law on Amending 
the Information to be Recorded in the Birth Register with amendments to the Civil Status Act.20
In Albania, the first instance administrative court of Durrës delivered an important judgment in the 
case of an intersex child.21 Although Albanian legislation protects intersex people from discrimination, 
it does not recognise the right to gender reassignment. In this case, reasoning on the basis of the 
principle of the best interests of the child, the court decided that the birth certificate of the claimant 
had to be amended, and that the sex of the child had to be changed from male to female. 
In Spain, there is no State law (applicable to the whole of Spain) that specifically states the principle 
of non-discrimination against transgender, intersex and non-binary people, though there are draft bills 
pending which contain specific prohibitions of discrimination on the ground of gender identity22 and 
on the grounds of sexual orientation, gender identity, gender expression or sexual characteristics.23 
Several Autonomous Communities have already enacted such legislation. 
In  Iceland,  the  explanatory  report  to  the  new  Gender  Equality  Act  No  150/2020  states  that  the 
terms ‘men’ and ‘women’ in the law also refer to trans people. 
In  Hungary,  important  developments  have  also  taken  place,  but  they  have  lessened  rather  than 
improved  the  protection  of  transgender,  intersex  and  non-binary  people.  The  Fundamental  Law 
(Hungary’s  Constitution)  was  amended  in  2020.  According  to  one  of  the  relevant  new  provisions, 
‘Hungary shall protect the right of children to a self-identity corresponding to their sex at birth.’24 
The reasoning of the amending bill claims that there are ‘new, modern ideological tendencies in the 
Western world’ questioning the nature of sex, and concludes that ‘birth sex is given and cannot be 
changed’.25 Moreover, the Fundamental Law now includes the notion that: ‘The mother shall be a 
woman, the father shall be a man’26 (i.e. the category of ‘mother’ is available only for females, and 
the category of ‘father’ is available only for males).
In  Turkey,  the  Human  Rights  and  Equality  Institution  Act  of  2016  does  not  cover  transgender, 
intersex  and  non-binary  people  and  cannot  be  extended  by  the  equality  body.  The  expert  deems 
that the Human Rights and Equality Institution Act is therefore not in compliance with the Turkish 
Constitution, EU law, or indeed human rights law, on this point.

2.2  Direct sex discrimination

2.2.1	 Explicit	prohibition	

The Gender Recast Directive 2006/54/EC defines direct discrimination as occurring ‘where one person is 
treated less favourably on grounds of sex than another is, has been or would be treated in a comparable 
situation’ (Article 2(1)a). As a rule, direct discrimination is prohibited and cannot be justified, unless a 
specific written exception applies, such as that the sex of the person concerned is a determining factor 
for the job (‘a genuine and determining occupational requirement’, Article 14(2) Gender Recast Directive).

20  Germany, Law on Amending the Information to be Recorded in the Birth Register (Amendments to the Civil Status Act) 

21 
22 

23 

(Gesetz zur Änderung der in das Geburtenregister einzutragenden Angaben) 18 December 2018.
Albania, First Instance Administrative Court of Durrës, Decision No. 1159, 29.12.2017.
Spain, Draft bill on full and effective equality for trans people, https://www.newtral.es/wp-content/uploads/2021/02/2021 
-02-02_Borrador-Ley-Trans.pdf?x62341.
Spain, Draft bill for an Organic Law on LGTBI rights, https://www.newtral.es/wp-content/uploads/2021/02/2021-02-02_
BORRADOR-LEY-IGUALDAD-LGTBI-.pdf?x62341.

24  Hungary, Fundamental Law of Hungary (Magyarország Alaptörvénye), 25 April 2011, Article XVI(1). An unofficial English 

translation of the current version, as in force on 23 December 2020, published by the Constitutional Court of Hungary, is 
available at: https://hunconcourt.hu/uploads/sites/3/2021/01/thefundamentallawofhungary_20201223_fin.pdf.

25  Hungary, Fundamental Law of Hungary (Magyarország Alaptörvénye), 25 April 2011, Article L(1).
26 

Bill No. T/13647, available (in Hungarian) at: https://www.parlament.hu/irom41/13647/13647.pdf.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Implementation of central concepts

Direct  sex  discrimination  is  prohibited  in  all  countries  under  review.  The  definition  of  direct  sex 
discrimination  appears  unproblematic  in  almost  all  countries.  In  Hungary,  however,  the  definition  of 
direct discrimination offers less protection in sex discrimination cases than the EU definition, because it 
allows the possibility of exemption in cases in which a difference in treatment is unavoidable because the 
fundamental right of another person has to be protected, if it is suitable for the designated purpose and 
proportionate, or otherwise has a reasonable and objective explanation directly related to the relevant 
relationship.27 This means that the Hungarian definition allows for justifications of direct sex discrimination 
that are not allowed under EU law. 

Something similar occurs in Croatia; the Croatian Constitutional Court allows for objective justifications 
of direct sex discrimination, in line with the case law of the European Court of Human Rights. According 
to the Constitutional Court, the legislator enjoys a certain margin of appreciation, and there would have 
to exist strong constitutionally acceptable reasons for the Constitutional Court to find a regulation that 
differentiates between men and women in compliance with the Constitution.

In Greece Act 4604/2019 rephrased the definition of direct discrimination as follows: ‘“direct discrimination”: 
any act or omission that excludes or places in an evidently inferior position persons because of sex, sexual 
orientation and gender identity; moreover, any instruction, instigation or systematic encouragement of 
persons to discriminate in an unfavourable or unequal way against other persons on the grounds of sex’. 
The Greek expert considers that ‘evidently inferior position’ seems to be a stronger requirement than ‘less 
favourable treatment’, whereas the requirement of ‘evidently’ less favourable treatment is restrictive in 
comparison to the wording of Directive 2006/54/EC, which does not use such a word. The Greek expert 
therefore deems this development ‘a serious regression with respect to the gender equality and anti-
discrimination acquis in Greece’.28

From the law-making point of view, Act 4604/2019 by amending the above-mentioned definition of the 
Directive 2006/54 without any reference to it, violates Article 33 of the Directive, which provides that 
when Member States adopt measures implementing the Directive, they shall contain a reference to the 
Directive or be accompanied by such reference on the occasion of their official publication.

2.2.2	 Prohibition	of	pregnancy	and	maternity	discrimination

Referring to case law of the Court of Justice, the Gender Recast Directive also states that ‘unfavourable 
treatment of a woman related to pregnancy or maternity constitutes direct discrimination on grounds of 
sex’ (Recital 23). Such treatment is therefore also covered by the directive. In line with this, most countries 
under  review  explicitly  prohibit  pregnancy  and  maternity  discrimination  as  a  form  of  discrimination 
(Albania, Austria, Belgium, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, 
Greece, Hungary, Iceland, Ireland, Italy, Latvia,, Liechtenstein, Luxembourg, Malta, Montenegro, 
Netherlands,  North  Macedonia,  Norway,  Romania,  Slovakia,  Slovenia,  Spain,  Turkey,  United 
Kingdom). 

In  some  of  the  countries  where  this  type  of  prohibition  is  not  explicitly  codified,  it  is  nevertheless 
established in case law or other documents that unfavourable treatment related to pregnancy or maternity 
constitutes sex discrimination (e.g. Serbia). In Sweden pregnancy and maternity discrimination is only 
indirectly – and tacitly – covered by the Discrimination Act’s ban on direct sex discrimination. According 
to the national expert, the Swedish implementation can – and has been29 – criticised on this point as 
not transparent. In Portugal discrimination on the ground of pregnancy and maternity is prohibited.30 

27  Hungary, Equality Act, Article 7(2) and (3).
28  Greece, Panagiota, P. (2020) Greece – Country report gender equality, European Commission, available at:  

https://www.equalitylaw.eu/country/greece, p. 19.
Compare Votinius, J. (2011) ‘Troublesome transformation. EU law on pregnancy and maternity turned into Swedish law on 
parental leave’, in: Rönnmar, M. (ed.), Fundamental Rights and Social Europe, Hart Publishing, Oxford.
Poland, Labour Code, Articles 24(1) and 25(6).

29 

30 

15

However,  there  is  no  explicit  mention  in  the  law  that  pregnancy  and  maternity  discrimination  is  to  be 
qualified as direct sex discrimination. In Poland neither the Anti-discrimination Law nor any provision of 
the Labour Code explicitly states that discrimination includes any less favourable treatment of a woman 
because of her pregnancy or childbirth-related leave. However, Article 12 of the Anti-discrimination Law 
stipulates that, in case of a breach of the equal treatment rule with regard to pregnancy or childbirth-
related leave, the person concerned has the right to damages, according to Article 13 (which refers to 
discrimination-related damages).31 In addition, in the case law based on the Labour Code, discrimination 
with regard to pregnancy is considered to be sex-based discrimination.32

2.2.3	 Specific	difficulties

Most experts report that there are no difficulties with applying the concept of direct sex discrimination 
at national level. Nevertheless, there do appear to be some difficulties, although not as many as with 
indirect discrimination. Several experts report a scarcity of case law (e.g. Estonia, Slovakia) or indeed an 
absence of case law (Liechtenstein). 

In Hungary, the Equality Act refers to 19 explicit grounds, such as sex, racial origin, etc., and a general 
term: ‘any other status, characteristic feature or attribute’.33 This has created the impression that it is 
enough to refer to discrimination in general without indicating the protected ground on the basis of which 
legal redress is claimed. There are still many cases adjudicated by the Kuria (the Supreme Court) where 
the claimant did not indicate the protected ground of their claim during the first instance procedure.34 

In Belgium, according to settled case law, direct discrimination is potentially justifiable. This does not 
accord  with  EU  law  and  to  resolve  this  problem  the  Belgian  legislature  has  introduced  a  difference 
between ‘distinction’ and ‘discrimination’. Direct discrimination is defined as a direct distinction that may 
not be justified when the object of such direct distinction falls within the scope of EU law (Article 13 of the 
Gender Act). In Croatia, direct sex discrimination is also potentially justifiable, because the Constitutional 
Court follows the approach of the European Court of Human Rights (ECtHR) in this respect.35

The  Spanish  expert  observes  that,  in  theory,  Spanish  legislation  allows  for  the  use  of  a  hypothetical 
comparator, but to date no case law has dealt with this. It is therefore not known whether the judiciary is 
prepared to accept this concept. 

The expert from Germany observes that the German General Equal Treatment Act does not contain a 
prohibition of discrimination in cases without an identifiable victim (cf. CJEU in Feryn).36 This likely holds 
true for most countries.

The French expert has highlighted cases which might signal new ways employers use collective bargaining 
agreements on worker mobility to circumvent protection against pregnancy discrimination. French courts 
are resisting these prohibited, but more subtle, collective practices.

31 

32 

33 

34 
35 

36 

The Draft Law amending the Antidiscrimination Law proposes to add the following provision: ‘The violation of equal 
treatment rule … in relation to pregnancy or maternity constitutes direct sex discrimination’. 
Poland, The Supreme Court (SC) in its judgment of 8 January 2008, II PK 116/07; and the ruling of the SC of 8 July 2008,  
IPK 294/07.
Article 8 of the Equality Act defines discrimination as follows: ‘Direct discrimination occurs if a person or a group is treated less 
favourably on the ground of his/her/its protected characteristic than any other person or group in comparable situation.’
For example, Kúria Pfv. 20351/2014/6.
In the case law of the ECtHR on Article 14 ECHR (the prohibition of discrimination) sex discrimination can be justified, 
provided it meets a stringent proportionality test (the ‘very weighty reasons’ doctrine).
CJEU, Judgment of 10 July 2008, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, C-54/07, 
EU:C:2008:397. 

16

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Implementation of central concepts

2.3  Indirect sex discrimination

2.3.1	 Explicit	prohibition

The Gender Recast Directive 2006/54/EC defines indirect discrimination as occurring ‘where an apparently 
neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared 
with  persons  of  the  other  sex,  unless  that  provision,  criterion  or  practice  is  objectively  justified  by  a 
legitimate  aim,  and  the  means  of  achieving  that  aim  are  appropriate  and  necessary’  (Article  2(1)b).37 
Indirect discrimination concerns measures that appear neutral, but which have a disadvantageous effect 
on particular people. For instance, less favourable treatment of part-time workers will often amount to 
indirect sex discrimination, as long as mainly women are employed on a part-time basis (e.g. C-170/84 
Bilka). Another example is the case of Kalliri, in 2017, where the CJEU ruled that requiring a minimum 
height (1.70 meters for both men and women) to enter the Police Academy in Greece must be considered 
indirect sex discrimination, as far fewer women than men fulfil this criterion.38

As with direct discrimination, indirect sex discrimination is explicitly prohibited in all countries discussed 
in this report. Not all national definitions are fully in line with the EU concept of indirect discrimination, 
however.  In  Poland,  the  legislator  thus  translated  the  Directive’s  notion  ’particular  disadvantage’  as 
the  ‘particularly  disadvantaged  situation’.  Both  Hungary  and  Cyprus  apply  a  more  stringent  test.  In 
Hungary,  the  concept  of  indirect  discrimination  is  narrower  than  the  EU  definition,  as  it  stipulates  a 
‘considerably larger disadvantage’ compared to a ‘particular disadvantage’ as mentioned in Article 2(1)(b) 
of the Recast Directive. Something similar is at issue in Cyprus, where the Greek translation of ‘particular 
disadvantage’  is  ‘notably  disadvantageous  position’.  The  Serbian  expert  reports  that  the  definition  of 
indirect  discrimination  does  not  contain  any  ‘would’  language  (i.e.  anything  in  the  conditional  tense), 
and can be interpreted as being limited to an actual occurrence of disadvantage, making it impossible 
to challenge neutral provisions before they in fact cause actual disadvantage to anyone. In Greece, the 
amended definition of indirect discrimination in Act 4604/2019 has created legal uncertainty. The new 
definition is more restrictive than the EU definition, as it refers to an ‘evidently inferior position’ instead 
of ‘less favourable treatment’. Moreover, it uses only the present tense (‘excludes or places in an inferior 
position’), which falls short of the wording of the Directive (‘would put [...] at a particular disadvantage’), 
which  also  covers  the  possibility  of  creating  a  particular  disadvantage.  From  the  law-making  point  of 
view,  Act  4604/2019  by  amending  the  above-mentioned  definition  of  the  Directive  2006/54  without 
any reference to it, violates Article 33 of the Directive, which provides that when Member States adopt 
measures implementing the Directive, they shall contain a reference to the Directive or be accompanied 
by such reference on the occasion of their official publication.

2.3.2	 Statistical	evidence

Indirect  discrimination  is  difficult  to  prove.39  In  order  to  establish  a  presumption  of  indirect  sex 
discrimination – in other words to establish the presumption that a neutral provision, criterion or practice 
has a particular disadvantageous effect on people of a particular sex – some countries allow statistical 
evidence. Statistical evidence is allowed (though not required) in Belgium, Cyprus, Czechia, Denmark, 
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Lithuania, Malta, the Netherlands, 
North Macedonia, Norway, Poland, Romania, Serbia, Spain, Sweden and the United Kingdom. In 
several countries there is no case law available (including Albania, Croatia, Iceland, Luxembourg and 
Slovakia). 

37 

See also Article 2(b) of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment 
between men and women in the access to and supply of goods and services, OJ L 373, pp. 37-43 (Directive 2004/113/EC).
CJEU, Judgment of 18 October 2017, Kalliri, C-409/16, EU:C:2017:767.

38 
39  General issues related to the burden of proof are discussed further below in Section 10.2. 

17

2.3.3	 Application	of	the	objective	justification	test

The  possibilities  for  justification  are  much  broader  than  with  direct  discrimination,40  as  the  definition 
of  indirect  discrimination  includes  an  objective  justification  test,  which  states:  ‘…unless	 that	 provision,	
criterion	or	practice	is	objectively	justified	by	a	legitimate	aim	and	the	means	of	achieving	that	aim	are	
appropriate	and	necessary’ (Article 2(1)b Gender Recast Directive). The CJEU has repeatedly ruled that the 
objective justification test is to be interpreted strictly.41 

Several experts report that case law that applies the objective justification test is lacking (e.g. Montenegro, 
Poland). 

Contrary to the strict interpretation of the objective justification test by the CJEU, Hungarian courts have 
applied the test liberally. The German expert notes that the objective justification test was applied in a 
problematic manner in a case concerning a height requirement from Saarland, and in a case from Berlin 
concerning a boys’ choir. 

The Danish expert reports that, in a 2019 case before the District Court of Copenhagen, the question arose 
of whether the use of the neutral criterion flexibility could place women at a particular disadvantage. As 
there is an overrepresentation of women among the group of sole providers with children, the Court ruled 
that the criterion of flexibility was indirectly discriminatory as the employer did not provide an objective 
justification. 

The reasoning of the Spanish courts does not generally follow a detailed structure for the justification 
test, in line with the CJEU doctrine (legitimate aim, necessity and suitability). Nevertheless, in the Spanish 
expert’s view, the objective justification test is correctly applied by national courts. 

2.3.4	 Specific	difficulties

The concept of indirect discrimination is complex and has caused difficulties for national courts. In many 
countries  there  is  scant  case  law  on  indirect  sex  discrimination  (including  Belgium,  Cyprus,  Latvia, 
Norway) In several countries (Estonia, Liechtenstein, Luxembourg, Montenegro, North Macedonia, 
Portugal,  Slovakia,  Slovenia,  Turkey)  there  appears  to  be  no  case  law  at  all  yet  on  indirect  sex 
discrimination.  On  the  positive  side,  in  some  countries  indirect  sex  discrimination  cases  are  emerging 
more frequently than in the past (e.g. Croatia).

Specific difficulties that the experts have reported include:

 –

 –

 –

The distinction between direct and indirect discrimination (and therefore the question of whether 
there can be an objective justification) is not always clear (Netherlands, Slovakia).
There  is  a  tendency  among  some  judges  to  require  an  intention  to  discriminate  on  the  part  of 
the perpetrator, though intent is not a criterion to prove indirect discrimination (Belgium, Greece, 
Romania). 
Job classifications and collective agreements: the German expert reports that many German courts 
face difficulties when indirect discrimination is linked to the gender-related division of labour and care 
work, and when discrimination is rooted in the job classification systems of collective agreements, 
due  to  a  specific  understanding  of  the  autonomy  of  collective  bargaining  (freedom  of  coalition) 

40 

41 

See the report produced by the European network of legal experts in the field of gender equality, McCrudden, C., Prechal, S. 
(2009) The concepts of equality and non-discrimination in Europe: A practical approach, European Commission, available at: 
http://ec.europa.eu/social/BlobServlet?docId=4553&langId=en.
CJEU, Judgment of 20 October 2011, Waltraud Brachner v Pensionsversicherungsanstalt, C-123/10, EU:C:2011:675; Judgment 
of 9 February 1999, Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez, C-167/97, 
EU:C:1999:60; Judgment of 20 March 2003, Helga Kutz-Bauer v Freie und Hansestadt Hamburg, C-187/00, EU:C:2003:168.

18

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Implementation of central concepts

 –
 –

under  the  German  Constitution.  The  Spanish  expert,  too,  notes  problematic  aspects  of  cases  on 
indirect discrimination in relation to incorrect job evaluations in collective agreements. 
Courts are still reluctant to rely on statistical data as evidence (Serbia).
In  Romania,  a  finding  of  indirect  discrimination  instead  of  direct  discrimination  is  more  likely  to 
lead to a lesser sanction (a warning instead of an administrative fine), because the National Council 
for  Combating  Discrimination  (CNCD)  sees  indirect  discrimination  as  a  less  serious  offence  due 
to  the  assumption  that  it  is  unintended  behaviour.  This  is  problematic  from  the  point  of  view  of 
implementing effective, disproportionate and dissuasive remedies at the national level.

2.4	 Multiple	discrimination	and	intersectional	discrimination

Multiple discrimination refers to discrimination based on two or more grounds simultaneously. The closely 
related  yet  distinct  concept  of  intersectional  discrimination  refers  to  discrimination  resulting  from  an 
interaction of grounds of discrimination which produces a new and different type of discrimination. The 
European  Equality  Law  Network  produced  a  thematic  report  on  intersectional  discrimination  in  2016, 
written by Sandra Fredman.42

Multiple discrimination and/or intersectional discrimination is explicitly covered in the national legislation 
of  Albania  (since  2020),  Austria,  Bulgaria,  Croatia,  Germany,  Greece  (Act  4604/2019),  Iceland, 
Ireland, Italy, Malta (currently still in Bill format), Montenegro, North Macedonia, Norway, Poland, 
Romania, Serbia (where multiple discrimination is explicitly covered, but only as a more severe form 
of  discrimination,  Slovenia  and  Turkey.  In  several,  but  by  no  means  all,  countries  there  is  case  law 
that  addresses  these  types  of  discrimination:  Albania,  Austria,  Belgium,  Croatia,  Estonia,  France, 
Germany, Greece (Ombudsman’s Mediation Report), Ireland, Italy, the Netherlands, Norway, Poland, 
Romania, Serbia, Slovakia, Sweden and the United Kingdom.

The experts from Cyprus, Czechia, Estonia, Finland, Latvia, Liechtenstein, Luxembourg and Spain 
note that in their countries there is neither legislation explicitly covering multiple and/or intersectional 
discrimination nor explicit case law.

2.5	 Positive	action43

2.5.1	 Definition	and	approach

Several provisions of EU law allow for positive action in the field of gender equality.44 Article 157(4) TFEU 
states: ‘With a view to ensuring full equality in practice between men and women in working life, the 
principle of equal treatment shall not prevent any Member State from maintaining or adopting measures 

42 

43 

44 

Fredman, S. (2016) Intersectional discrimination in EU gender equality and non-discrimination law, European Commission, 
available at: http://www.equalitylaw.eu/downloads/3850-intersectional-discrimination-in-eu-gender-equality-and-non-
discrimination-law-pdf-731-kb.
See the reports produced by the European network of legal experts in the field of gender equality, McCrudden, C. (2019) 
Gender-based positive action in employment in Europe, European Commission, available at: https://www.equalitylaw.
eu/downloads/5008-gender-based-positive-action-in-employment-in-europe-pdf-1-9-mb; Fredman, S. (2009) Making 
equality effective: The role of proactive measures, European Commission, available at: http://ec.europa.eu/social/
BlobServlet?docId=4551&langId=en; Selanec, G., Senden, L. (2011) Positive action measures to ensure full equality in practice 
between men and women, including on company boards, European Commission, available at: https://www.equalitylaw.
eu/downloads/3864-positive-action-measures-to-ensure-full-equality-in-practice-between-men-and-women-including-
on-company-boards-pdf-2-639-kb; Xenidis, R. and Masse-Dessen, H. (2018) ‘Positive action in practice: some dos and 
don’ts in the field of EU gender equality law’, European equality law review No. 2/2018, pp. 36-62, available at: https://www.
equalitylaw.eu/downloads/4759-european-equality-law-review-2-2018-pdf-1-206-kb; Krstic, I. (2016) ‘Implementation of 
positive action measures for achieving gender equality in North Macedonia, Montenegro and Serbia’, European equality 
law review No. 2/2016, pp. 22-33, available at: https://www.equalitylaw.eu/downloads/3938-european-equality-law-
review-2-2016. 
See Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326, 26.10.2012, pp. 47-390 (TFEU), 
Article 157(4); Article 23 Charter of Fundamental Rights; Article 3 Gender Recast Directive 2006/54/EC; Article 6 Goods and 
Services Directive 2004/113/EC.

19

providing  for  specific  advantages  in  order  to  make  it  easier  for  the  underrepresented  sex  to  pursue  a 
vocational activity or to prevent or compensate for disadvantages in professional careers.’ 

As a rule, positive action may be taken in the various areas covered by EU law, including employment, 
occupational pension schemes and access to and provision of goods and services. The most important 
area for positive action has, until now, been access to employment and working conditions. Whenever 
positive action measures exist, they appear to be more common in the public sector. Where no obligations 
are laid down, the public sector is at least encouraged to take positive action measures. In the private 
sector such measures are, on the whole, voluntary. Only in a few countries do obligations exist for the 
private sector, for instance in the form of equality plans (e.g. Finland).

All countries under review have enacted legislative provisions allowing positive action. The exception 
is Latvia: Latvian law neither allows nor provides for any kind of positive action, except one soft-quota 
provision concerning the election of judges in self-governing bodies. In Lithuania, the act is essentially 
a dead letter law: positive action is defined in the act as being specific temporary measures laid down by 
specific laws, but there are no such laws in force that would allow positive action to be taken. 

In a recent report by the European Equality Law Network on gender-based positive action in employment, 
it  has  become  clear  that  there  are  significant  differences  between  countries  as  to  what  is  actually 
meant by ‘positive action’, and what types of measures this concept covers.45 There is also significant 
terminological confusion, as besides ‘positive action’ several other terms are in use such as ‘affirmative 
action’, ‘parité’, and ‘special measures’.46 Christopher McCrudden, the author of the report, has found that 
the underlying problem is conceptual confusion.47 EU law construes positive action as an exception to the 
non-discrimination principle,48 thus following a formal rather than a substantive equality approach. Many 
Member States, EEA countries and candidate countries follow this approach.

Several  countries  take  a  more  pro-active  approach  on  positive  action  (including  Finland,  Greece  and 
Sweden).  In  Greece,  positive  action  is  not  merely  allowed,  it  is  required  by  the  Constitution  in  all 
areas (Article 116(2)). In addition to provisions on positive action, Swedish law includes the concept of 
‘active measures’ in the areas of working life and education. The employer or education-provider must 
continuously and actively seek information on needs that may arise in relation to different grounds for 
discrimination.  The  information  gathered  must  then  be  transposed  into  active  measures  to  create  an 
inclusive and accessible workplace or educational institution.

2.5.2	 Specific	difficulties	

Many national experts report difficulties in relation to positive action, both at the conceptual level and at 
the level of implementation.

 –

 –

Positive action is seen as the exception to the (formal) equality principle, rather than as an essential 
aspect of achieving substantive equality (e.g. Bulgaria, Cyprus, Turkey).
In  many  countries,  positive  action  measures  are  not  very  widespread  and  are  hardly  seen  as  a 
priority by the legislature, social partners, or individual employers (e.g. Bulgaria, Czechia, Estonia, 
Montenegro).  The  expert  from  Cyprus  reports  that,  though  such  measures  are  allowed,  no 
positive  action  measures  have  been  taken  at  all.  The  Serbian  expert  states  that  while  positive 

45  McCrudden, C. (2019) Gender-based positive action in employment in Europe, European Commission, pp. 80-84, available at: 
https://www.equalitylaw.eu/downloads/5008-gender-based-positive-action-in-employment-in-europe-pdf-1-9-mb.
46  McCrudden, C. (2019) Gender-based positive action in employment in Europe, European Commission, pp. 80-84, available at: 
https://www.equalitylaw.eu/downloads/5008-gender-based-positive-action-in-employment-in-europe-pdf-1-9-mb.

47  McCrudden, C. (2019) Gender-based positive action in employment in Europe, European Commission, p. 84, available at: 

https://www.equalitylaw.eu/downloads/5008-gender-based-positive-action-in-employment-in-europe-pdf-1-9-mb.
48  McCrudden, C. (2019) Gender-based positive action in employment in Europe, European Commission, pp. 52-55, available at: 
https://www.equalitylaw.eu/downloads/5008-gender-based-positive-action-in-employment-in-europe-pdf-1-9-mb.

20

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Implementation of central concepts

 –

 –

action measures are allowed by the Serbian constitution and legislature, they are not a priority for 
individual employers. 
In  line  with  this,  the  Hungarian  expert  notes  that  strong  political  objections  exist  against  taking 
certain types of positive action measures – especially against quotas.
The  case  law  of  the  CJEU,  particularly  the  cases  Kalanke,	 Marschall,	 Badeck  and  Abrahamsson,49 
has  prevented  the  Netherlands  from  developing  affirmative  action  policies  to  hire  women  at 
universities.50  In  Germany  this  case  law  has  also  proved  problematic.  Similarly,  the  expert  from 
Norway reports that EU law has to some extent formed a brake on the development of positive 
action measures in Norway in the context of academic education.51

 – Weak monitoring (e.g. Bulgaria, Finland). 
 –
 –

Positive action measures are costly (e.g. Iceland).
In Belgium an ancillary royal decree concerning positive action was adopted relating to employment 
in the private sector (2019), but decrees covering employment in the public sector as well as access 
and provision of goods and services are still lacking.

However, there are also some experts who have noted that positive action is well-established in the non-
discrimination legislation of their country (e.g. Greece, Portugal).

2.5.3	 Measures	to	improve	the	gender	balance	on	company	boards

Of particular interest is the issue of gender balance on company boards.52 A proposal from the Commission 
on  this  topic  is  pending.53  An  increasing  number  of  countries  have  adopted  measures  that  aim  to 
improve the gender balance on company boards. The countries which have adopted such measures are 
Albania,54 Austria,55 Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, 
Luxembourg, the Netherlands, Norway, Portugal, Romania, Serbia, Slovenia, Spain and Turkey.

2.5.4	 Positive	action	measures	to	improve	the	gender	balance	in	other	areas

In  a  number  of  countries  there  are  also  other  positive  action  measures,  often  in  the  form  of  ‘soft’ 
measures,  to  improve  the  gender  balance  in  specific  fields,  such  as  positive  action  regarding  political 
candidates’ lists (e.g. in Albania and Austria), workers’ representatives lists (e.g. in France), or regarding 
the composition of political bodies. The experts from the following countries report that such measures 
exist in their countries: Albania (where there is a legal requirement that each sex must make up at least 
30 % of candidates in parliamentary elections and at least 50 % in local elections), Austria, Belgium, 
Croatia, Finland, France, Germany, Greece (where there is a legal requirement that each sex must 
make up at least one third of the members of the service councils and at least 40 % of candidates in local 

49 

Judgment of 17 October 1995, Kalanke v Freie Hansestadt Bremen, C-450/93, EU:C:1995:322; Judgment of 11 November 
1997, Marschall, C-409/95, EU:C:1997:533; Judgment of 28 March 2000, Badeck, C-158/97, EU:C:2000:163; Judgment of 
6 July 2000, Abrahamsson, C-407/98, EU:C:2000:367.

50  Netherlands Institute for Human Rights (College voor de rechten van de mens), Opinions 2011-198; 2012-195 and Opinion 

51 
52 

53 

2020-53 available at: www.mensenrechten.nl.
Cf. EFTA Court, Judgment of 22 April 2002, Surveillance Authority v the Kingdom of Norway, E-1/02.
Selanec, G., Senden, L. (2011) Positive action measures to ensure full equality in practice between men and women including 
on company boards, European Commission, available at: https://www.equalitylaw.eu/downloads/3864-positive-action-
measures-to-ensure-full-equality-in-practice-between-men-and-women-including-on-company-boards-pdf-2-639-kb; 
and Senden, L., Visser, M. (2013) ‘Balancing a Tightrope: The EU Directive on improving the gender balance among non-
executive directors of boards of listed companies’, European gender equality law review No. 1/2013, pp. 17-33, available at: 
https://publications.europa.eu/en/publication-detail/-/publication/47bf7a78-e399-41a5-bd77-bc95281ee6be/language-
en/format-PDF; Senden, L., Kruisinga, S. (2018) Gender-balanced company boards in Europe A comparative analysis of the 
regulatory, policy and enforcement approaches in the EU and EEA Member States, European Commission, available at:  
https://www.equalitylaw.eu/downloads/4537-gender-balanced-company-boards-in-europe-pdf-1-68-mb.
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 of 14 November 2012, COM (2012) 614 
final, as amended by the Malta Presidency 2012/0299 (COD) 31 May 2017. 
In Albania, this concerns only public company boards. 

54 
55  However, in Austria, the quota only applies to supervisory boards; a quota for managing boards has been demanded, inter 

alia, by the Chamber of Labour, but has to date not been adopted.

21

and parliamentary elections and the European elections), Iceland (Article 28 of the Gender Equality Act 
150/2020 includes the obligation to ensure gender-balanced appointments in government and municipal 
committees,  councils  and  boards),  Ireland,  Italy,  Liechtenstein,  Luxembourg,  Malta,  Montenegro, 
North Macedonia, Norway, Poland (where there is a legal requirement that each sex must make up at 
least 35 % of the candidates), Portugal, Serbia, Slovenia, Spain and the United Kingdom. In Greece 
such measures are compulsory and their implementation is subject to judicial review. In Hungary political 
parties can adopt positive action measures;56 this regulation, however, is rarely applied in practice. The 
Swedish expert reports that the representation of women in Parliament and Government is close to 50 % 
and this number was achieved without using quotas. 

Some countries also have research funding programmes which in specific circumstances might prefer 
female  over  male  applicants  (e.g.  Denmark)  and  other  programmes  to  increase  diversity  and  gender 
equality in higher education (e.g. Netherlands).

2.6	 Harassment	and	sexual	harassment57

2.6.1	 Definition	and	explicit	prohibition	of	harassment	and	sexual	harassment

EU law prohibits harassment on the ground of a person’s sex and sexual harassment and equates both 
with sex discrimination. Neither harassment on the ground of sex nor sexual harassment can be justified. 
Gender  Recast  Directive  2006/54/EC  Article  2(1)(c)  defines  harassment  as  ‘where  unwanted  conduct 
related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and 
of creating an intimidating, hostile, degrading, humiliating or offensive environment.’58 Article 1(d) defines 
sexual	harassment as ‘where any form of unwanted verbal, non-verbal or physical conduct of a sexual 
nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating 
an intimidating, hostile, degrading, humiliating or offensive environment’.59 Both definitions include the 
violation  of  a  person’s  dignity  and  the  creation  of  an  intimidating,  hostile,  degrading,  humiliating  or 
offensive  environment.  These  conditions  are  cumulative,  i.e.  both  need  to  have  been  met  in  order  to 
comply  with  the  definition.  The  main  difference  is  that  in  the  case  of  harassment  on  the  ground  of  a 
person’s sex, the person is ill-treated because he or she is a man or a woman (or, presumably, because 
they identify as non-binary). In the case of sexual harassment, it instead involves a person being subject 
to unwelcome sexual advances or, for instance, the aim of the perpetrator’s behaviour is to obtain sexual 
favours. In concrete situations the distinction between the two may be unclear.60

All countries covered by this report have prohibited both harassment and sexual harassment in national 
legislation. 

French law takes a step further and also prohibits sexist behaviour at work. This is defined as behaviour 
based  on  gender,  with  the  purpose  or  effect  of  harming  dignity  or  creating  an  intimidating,  hostile, 
degrading, humiliating or offensive work environment (see Article L.1142-2-1 of the French Labour Code).

56  Hungary, Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV. törvény 

az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról), 28 December 2003, Article 11(1)b.

57  De Vido, S., Sosa, L. (2021) Criminalisation of gender-based violence against women in European States, including ICT-facilitated 
violence, European Commission, available at: https://www.equalitylaw.eu/downloads/5535-criminalisation-of-gender-
based-violence-against-women-in-european-states-including-ict-facilitated-violence-1-97-mb, Chapter 4; see also 
Petroglou, P. (2019) ‘Sexual harassment and harassment related to sex at work: time for a new directive building on the 
EU gender equality acquis’, European equality law review No. 2/2019, pp. 16-34, available at: https://www.equalitylaw.eu/
downloads/5005-european-equality-law-review-2-2019-pdf-3-201-kb. 
See also Article 2(c) Directive 2004/113/EC and Article 3(c) Directive 2010/41/EU.
See also Article 2(d) Directive 2004/113/EC and Article 3(d) Directive 2010/41/EU.
See the report of the European network of legal experts in the field of gender equality, Numhauser-Henning, A., Laulom, S. 
(2011) Harassment related to sex and sexual harassment law in 33 European countries. Discrimination versus dignity, European 
Commission, available at: https://publications.europa.eu/en/publication-detail/-/publication/e06dcc86-b7bf-459e-8241-
47502ef379c4/language-en/format-PDF/source-86560771.

58 
59 
60 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Implementation of central concepts

2.6.2	 Scope	of	the	prohibition	of	harassment	and	sexual	harassment

The Gender Recast Directive prohibits harassment and sexual harassment in the context of employment, 
including access to employment, vocational training and promotion. Similar obligations and definitions 
apply to the access to and supply of goods and services according to Directive 2004/113/EC. In most 
countries the  scope of the prohibition on harassment  and  sexual  harassment  is  wider  than  in  EU  law 
(Albania,  Austria,  Belgium,  Bulgaria,  Croatia,  Denmark,  Estonia,  Finland,  Germany,  Greece, 
Hungary,  Iceland,  Latvia,  Montenegro,  North  Macedonia,  Norway,  Poland,  Romania,  Slovakia, 
Slovenia,  Spain,  Sweden,  United  Kingdom).  In  some  of  these  countries  harassment  and  sexual 
harassment are prohibited in all spheres of life.

As  regards  sexual  harassment,  Germany  only  prohibits  it  in  the  employment  context,  thereby  falling 
short  of  fully  implementing  EU  law,  as  Directive  2004/113/EC  Article  4(3)  also  prohibits  harassment 
based on sex and sexual harassment in the access to and supply of goods and services. 

2.6.3	 Understanding	of	(sexual)	harassment	as	discrimination

As mentioned above, EU law has explicitly opted to consider harassment on the grounds of a person’s 
sex and sexual harassment as a form of sex discrimination.61 In practice at the national level, however, 
this is not always the case. The Belgian and Greek experts, for example, report that harassment and 
sexual harassment are hardly ever perceived or analysed as forms of gender discrimination in case law. 
In Turkey an explicit prohibition of sexual harassment as a form of sex discrimination is lacking from 
employment legislation.

Not all countries have enacted legislation that specifies that harassment and sexual harassment amount 
to discrimination (see Article 2(2)(a) of Directive 2006/54/EC). In Montenegro such legislation does not 
exist.

2.6.4	 Specific	difficulties	

Many national experts have reported that the number of cases that concern harassment on the basis of 
sex and sexual harassment is low (including Cyprus, Germany, Greece, Iceland, Latvia, Montenegro, 
Slovakia,  Spain,  Turkey),  or  that  there  is  no  case  law  at  all  (Liechtenstein).  More  broadly,  several 
experts note that there is a general lack of measures addressing harassment and sexual harassment in 
employment (e.g. Germany, Serbia). 

Reasons why victims are hesitant to go or are dissuaded from going to court include:

 –
 –
 –
 –

 –

 –

They are deterred by the length and costs of judicial proceedings (Cyprus, Norway).
The sanctions that are imposed in practice are too low to have a deterrent effect (Croatia).
Fragmented legislative framework and different types of proceedings available (Croatia).
In cases of sexual harassment at work, it is the victim who is moved to another work location, if 
possible, and not the perpetrator (Croatia).
It is difficult to provide proof of harassment (e.g. Austria, Bulgaria, Finland, Greece, Romania), 
especially as there are often no witnesses.
They  fear  victimisation  and/or  do  not  want  to  risk  acquiring  a  ‘bad  reputation’  in  the  labour 
market  (e.g.  Bulgaria,  Estonia,  Greece,  Portugal,  Turkey).  This  can  be  worsened  by  a  general 
precariousness in the labour market and high unemployment (Spain); or the small size of the labour 

61 

For a discussion of difficulties with this concept see the report by the European network of legal experts in the field of 
gender equality, Numhauser-Henning, A., Laulom, S. (2011) Harassment related to sex and sexual harassment law in 33 
European countries. Discrimination versus dignity, European Commission, available at: https://publications.europa.eu/en/
publication-detail/-/publication/e06dcc86-b7bf-459e-8241-47502ef379c4/language-en/format-PDF/source-86560802. 

23

market (Luxembourg). In relation to victimisation, the expert from Greece adds that victims often 
fear  that  the  perpetrator  might  bring  criminal  charges  against  them  for  slander  (which  is  quite 
common in practice) and/or civil claims for moral damages.
The existence of non-disclosure agreements (United Kingdom).

 –

Several experts have also reported other types of legal difficulties:

 –

 –

 –

 –

 –

In  Romania  the  fact  that  sexual  harassment  is  prohibited  both  in  the  Criminal  Code  and  in  the 
Gender Equality Law raises difficulties. On several occasions, when alleged acts of harassment took 
place within labour relations, the National Council for Combating Discrimination (Consiliul	Național	
pentru	Combaterea	Discriminării, CNCD) decided to declare the case inadmissible rationae	materiae, 
without actually referring the case to the prosecutor’s office.62 This is problematic because a criminal 
investigation into sexual harassment starts with a complaint from the alleged victim within three 
months from the time of the act, a period that is usually lost through CNCD procedures, leaving the 
victim without effective remedy. 
In Norway it is uncertain what degree of liability employers have when their representatives harass 
someone. 
In  Croatia  the  protection  against  sexual  harassment  is  fragmented  and  regulated  in  various 
legislative instruments, and it can be subject to several types of proceedings.
In Turkey, civil servants cannot be prosecuted for crimes (including harassment or sexual harassment) 
unless their superior consents to prosecution.
In Belgium, if the victim of harassment or sexual harassment is an employee, he or she must rely 
on the Welfare at Work Act to the exclusion of the Gender Act of 10 May 2007. This makes for faulty 
compliance with Directive 2006/54/EC, for various reasons but in particular because a woman who 
is the victim of sexual harassment at work is forbidden to complain about gender discrimination.

In recent years, thanks to #MeToo and related movements, the existence of sexual harassment and sex-
based harassment has received more societal attention. This has had various effects. The experts from 
Bulgaria and Czechia note that there is widespread resistance to the concept of sexual harassment 
in society, which manifested in resistance to the #MeToo movement. Some other experts have reported 
positive effects, however, in the sense that the number of cases has increased. 

2.7	 Instruction	to	discriminate

In  EU  law,  instruction  to  discriminate  on  the  ground  of  a  person’s  sex  is  equated  with  discrimination 
(Article  2(2)(b)  of  the  Gender  Recast  Directive  2006/54/EC).63  Thus,  for  example,  where  an  agency  is 
requested by an employer to supply workers of one sex only, both the employer and the agency would 
be liable and would have to justify such sex discrimination. EU law does not clearly define an instruction 
to discriminate.

All countries have prohibited instruction to discriminate. In most countries, the prohibition concerning 
the  instruction  to  discriminate  is  similar  in  formulation  to  that  in  EU  law  and  is  not  further  defined. 
Some countries have adopted a legal definition, however. In Bulgaria, it means direct and intentional 
encouragement, giving an instruction, exerting pressure or persuading someone to engage in discrimination.

Few  experts  report  difficulties  with  the  concept  of  instruction  to  discriminate.  In  Croatia,  because 
of  diverging  definitions  in  legislation,  there  was  confusion  about  whether  intent  is  required  or  not,  a 

62 

63 

E.g. CNCD (2014, 2008), Decision No. 589 of 22.10.2014, available at: http://nediscriminare.ro/uploads_ro/docManager/727/
hotarare_589-14_V.O.pdf; Decision No. 648 of 20.11.2008, available at: http://nediscriminare.ro/uploads_ro/docManager/ 
896/hot._648-2008.pdf. 
See also Asscher-Vonk, I. (2012) ‘Instruction to discriminate’, European gender equality law review No. 1/2012, pp. 4-12, 
available at: https://publications.europa.eu/en/publication-detail/-/publication/dea2021f-0be4-476f-bd8f-86829326380a/
language-en/format-PDF/source-86561026.

24

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Implementation of central concepts

requirement which is not mentioned in Article 2(2)(b) of the Recast Directive. In North Macedonia, it 
is in practice very difficult to prove instruction to discriminate. The courts rejected several cases where 
the  claimant  asserted  that  hate  speech  constituted  an  instruction  to  discriminate.  In  many  countries 
there has not yet been any case law regarding instruction to discriminate (Belgium, Cyprus, Estonia, 
Germany,  Greece  (where  the  legislation  transposing  Directives  2004/113/EC  and  2010/41/EU  also 
prohibits ‘encouragement’ to discriminate), Luxembourg, Malta, Romania). 

2.8  Other forms of discrimination

Several countries also prohibit other forms of discrimination in their national law, such as discrimination 
by association or discrimination based on assumed characteristics (Albania, Bulgaria, Croatia, Cyprus, 
Czechia, Denmark, Finland, Germany, Greece (which prohibits discrimination by association, but only 
in respect of grounds of discrimination other than sex), Hungary (which prohibits assumed discrimination, 
segregation  and  retaliation),  Ireland,  Montenegro  (which  prohibits  segregation),  Norway,  Serbia, 
Turkey,  United  Kingdom  (Great  Britain)).  Discrimination  by  association  was  developed  in  EU  law 
in relation to disability discrimination in the Coleman case.64 It refers to a situation when someone is 
discriminated against by virtue of their association with someone who possesses a protected characteristic. 
Assumed discrimination occurs when someone is treated differently based on assumptions related to a 
personal characteristic. For example, an employer could treat an employee disadvantageously because 
they assume the employee is pregnant. 

In Ireland, the Employment Equality Act has a particularly broad definition of discrimination as it refers 
to any of the discrimination grounds which (i) exists, (ii) existed but no longer exists, (iii) may exist in the 
future, or (iv) is imputed to the person concerned. Discrimination is also taken to occur where ‘a person 
who is associated with another person is treated, by virtue of that association, less favourably than a 
person who is not so associated is, has been or would be treated in a comparable situation’.65

In  a  2020  amendment  to  the  Albanian  Law  on  Protection  from  Discrimination  (LPD)  a  prohibition  of 
structural  discrimination  has  been  included.  ‘Structural  discrimination’  is  defined  as  follows:  ‘a  form 
of discrimination that refers to the rules, provisions, practices, patterns of attitudes and behaviours in 
institutions  and  other  social  structures,  that  consciously  or  unconsciously  present  obstacles  to  groups 
or individuals to have the same rights and possibilities as others, and that contribute to less favourable 
results for them compared to others’.

Most experts note that there are no specific legislative provisions on algorithmic discrimination, but that 
algorithmic discrimination could presumably be covered under the general provisions of anti-discrimination 
and  gender  equality  law.  In  some  countries  there  is  burgeoning  case  law  on  this  topic  (e.g.  Austria, 
Finland,  Italy),  and  in  other  countries  policies  and  action  plans  concerning  algorithmic  discrimination 
have  been  adopted  (e.g.  Serbia).  The  European  network  of  legal  experts  in  gender  equality  and  non-
discrimination has recently published a report on algorithmic discrimination, authored by Janneke Gerards 
and Raphaele Xenidis.66

64 

65 
66 

CJEU, Judgment of 17 July 2008, Coleman, C-303/06, EU:C:2008:415; see also Karagiorgi, C. (2014) ‘The concept of 
discrimination by association and its application in the EU Member States’, European Anti-discrimination Law Review 18, 
pp. 25-36, available at: https://publications.europa.eu/en/publication-detail/-/publication/d172d22d-30f5-44ab-afa2-
4768e7a68689/language-en/format-PDF.
Ireland, Section 6 of the Employment Equality Act 1998 (as amended).
European network of legal experts in gender equality and non-discrimination, Gerards, J. and Xenidis, R. (2020) Algorithmic 
discrimination in Europe: Challenges and opportunities for gender equality and non-discrimination law, European Commission, 
available at: https://www.equalitylaw.eu/downloads/5361-algorithmic-discrimination-in-europe-pdf-1-975. 

25

2.9	 Evaluation	of	implementation

On the whole, with some specific difficulties mentioned in the paragraphs above, the national experts are 
of the opinion that the key concepts of EU gender equality law have correctly transposed into national law. 
Several experts (e.g. Albania, Belgium) do, nevertheless, report difficulties related to (the recognition of) 
gender identity or note that the protection against discrimination for intersex, transgender and non-binary 
persons  is  not  satisfactory  (e.g.  Cyprus).  However,  many  of  these  difficulties  do  not  strictly  speaking 
concern the implementation of EU law on equality based on sex.

Most  of  the  difficulties  relate  to  the  level  of  implementation  and  enforcement,  rather  than  the  legal 
framework itself. The lack of case law that virtually all experts mention has various root causes, amongst 
which  experts  indicate  lack  of  knowledge  about  the  law  on  the  part  of  all  actors  (victims,  employers, 
judges etc).

26

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 20213	

	Equal	pay	and	equal	treatment	at	work	(Article	157	on	the 	
Treaty on the Functioning of the European Union (TFEU) and 
Recast	Directive	2006/54)

3.1  Equal pay67

The principle of equal pay for men and women for equal work or work of equal value, now contained in 
Article 157 TFEU, has been entrenched ever since the beginning in the EEC Treaty. In order to facilitate the 
implementation of the principle, Directive 75/117/EEC was adopted in 1975 and has since been repealed 
by  Recast  Directive  2006/54/EC.  Indeed,  both  direct  and  indirect  discrimination  in  pay  are  prohibited 
and the CJEU has answered many preliminary questions from national courts on this issue. These have 
included the scope of the notion of ‘pay’, which the CJEU has interpreted broadly;68 pay includes not only 
basic pay, but also, for example, overtime supplements,69 special bonuses paid by the employer,70 travel 
allowances,71 compensation for attending training courses and training facilities,72 termination payments 
in  case  of  dismissal  and  occupational  pensions.73  In  particular,  the  extension  of  pay  in  the  sense  of 
Article 157 TFEU to occupational pensions has been very important (see Section 5).

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

Unfortunately, despite this legal framework, the difference between the remuneration of male and female 
employees remains one of the great concerns in the area of gender equality: on average, the average 
gross hourly wage difference between men and women (= gender pay gap) in the EU is 14.1 %74 and 
progress has been slow in closing the gender pay gap.75 The differences can partly be explained by factors 
other  than  discrimination:  e.g.  traditions  in  the  career  choices  of  men  and  women;  the  fact  that  men, 
more often than women, are given overtime duties, with corresponding higher rates of pay; the gender 
imbalance in the sharing of family responsibilities; ‘glass ceilings’; part-time work, which is often highly 

67 

68 

69 

70 
71 
72 
73 

74 

75 

See the reports produced by the European network of legal experts in the field of gender equality on this topic: Burri, S. 
(2019) National cases and good practices on equal pay, European Commission, available at: https://www.equalitylaw.eu/
downloads/5002-national-cases-and-good-practices-on-equal-pay; Foubert, P. (2017) The enforcement of the principle 
of equal pay for equal work or work of equal value, European Commission, available at: https://www.equalitylaw.eu/
downloads/4466-the-enforcement-of-the-principle-of-equal-pay-for-equal-work-or-work-of-equal-value-pdf-840-kb. 
See for example Case C-381/99, Brunnhofer, judgment of 26 June 2001, ECLI:EU:C:2001:358; Case C-167/97, R v Secretary of 
State for Employment, ex parte Seymour-Smith and Perez, judgment of 9 February 1999, ECLI:EU:C:1999:60, paras 24-25. Case 
12/81, Garland v British Rail Engineering, judgment of 9 February 1982, ECLI:EU:C:1982:44, para 5; Case C-262/88, Barber, 
judgment of 17 May 1990, ECLI:EU:C:1990:209, para 12.
Joined Cases C-399/92, C-409/92, C-425/92, C-34/93, C-50/93 and C-78/93, Helmig and Others judgment of 15 December 
1995, ECLI:EU:C:1994:415.
See for example C-58/81, Commission v Luxembourg, judgment of 9 June 1982, ECLI:EU:C:1982:215. 
Case 12/81, Garland v British Rail Engineering, judgment of 9 February 1982, ECLI:EU:C:1982:44.
Case C-360/90, Arbeiterwohlfahrt der Stadt Berlin e.V. v Monika Bötel, judgment of 4 June 1992, ECLI:EU:C:1992:246.
For example Case C-249/97, Gruber v Silhouette International Schmied GmbH & Co KG, judgment of 14 September 1999, 
ECLI:EU:C:1999:405. 
European Commission (2021), ‘Pay Transparency: Equal pay for women and men for equal work’, Factsheet, see: https://
ec.europa.eu/info/sites/info/files/aid_development_cooperation_fundamental_rights/pay_transparency_factsheet_
en.pdf. 
European Commission (2018), ‘The gender pay gap in the European Union’, Factsheet, see: https://ec.europa.eu/info/sites/
info/files/aid_development_cooperation_fundamental_rights/equalpayday-eu-factsheets-2018_en.pdf.

27

feminised; job segregation etc. However, another part of the discrepancies cannot be explained except by 
the fact that there is pay discrimination, which the principle of equal pay aims to eradicate.76 

The  COVID-19  pandemic  is  considered  to  have  highlighted  and  exacerbated  the  gender  pay  gap,  due 
to the fact that many sectors with predominantly female employees were hit particularly hard by the 
pandemic.77 This was, for example, reported by the Croatian expert. Moreover, many studies suggest that 
women tended to take on most of the childcare at home.78 

3.1.1	 Implementation	in	national	law

The principle of equal pay under EU law is, in general, reflected in the legislation of the Member States 
and the EEA countries, both at the constitutional and the legislative level, either as part of general labour 
law or as provided for in specific anti-discrimination legislation. Furthermore, in some states equal pay is 
also guaranteed (partly) by collective agreement (Belgium). 

Meanwhile, the Hungarian expert has expressed concern about the fact that the equal pay principle as 
such, which was included in the former constitution, has not been adopted in Hungary’s new constitution 
(the Fundamental  Law  of Hungary, 2011), despite opposition  members asking  to  keep  it  in  place  and 
although the new constitution does contain the wider provision that ‘Women and men shall have equal 
rights’. The Romanian Constitution lays down the principle of equal pay but it does not cover work of 
equal value, only equal work, and it only applies to salaries, not to other types of remuneration or benefits 
for work.79 There is no case law from the Constitutional Court explaining how these limitations should 
be interpreted. Yet the Labour Code,80 the Anti-discrimination Law81 and the Gender Equality Law82 fully 
transpose the principle of equal pay, covering all these aspects. By contrast, in Greece the principle of 
equal pay for equal work or work of equal value is enshrined in the Constitution and this principle covers 
any ground whatsoever and is not limited to sex. However, the scope given to the principle still varies in 
a number of respects, as the following section will show.

In Germany, the Pay Transparency Act entered into force on 6 July 2017.83 The Act contains an explicit 
prohibition of direct and indirect pay discrimination on the grounds of sex/gender (including pregnancy 
and motherhood). It tries to provide a definition of ‘same work’ and ‘work of equal value’, covering the 
kind of work, training requirements, working conditions and the key requirements of the actual work in 
question.  The  prohibition  of  pay  discrimination  is  repeated  under  the  heading  ‘pay  equality’  (although 
there  is  still  no  obligation  to  pay  the  same  remuneration  for  the  same  work  under  German  law,  but 
rather there is a prohibition of pay discrimination on the grounds of sex, which is different). Agreements 
violating the prohibition of pay discrimination on the grounds of sex/gender are invalid. The Act explicitly 
prohibits victimisation connected to the exercising of rights under this law. Nevertheless, first evaluations 
of the Act carried out in 201984 suggest that the success of the law is limited, largely due to the way 

77 

76  On legal aspects of the gender pay gap, see the report produced by the European network of legal experts in the field 
of gender equality, Foubert, P., Burri, S., Numhauser-Henning, A. (2010) The gender pay gap from a legal perspective 
(including 33 country reports), European Commission, available at: https://publications.europa.eu/en/publication-detail/-/
publication/8745534d-d450-4ae1-bfe2-0f7389d361ef/language-en/format-PDF/source-86561461.
Böök, B., van Hoof, F., Senden, L., Timmer, A. (2020) ‘Gendering the COVID-19 crisis: a mapping of its impact and call for 
action in light of EU gender equality law and policy’, European equality law review 2020/2, pp. 32-33, available at: https://
www.equalitylaw.eu/downloads/5300-european-equality-law-review-2-2020-pdf-1-446-kb. 
Farré, L., Fawaz, Y., González, L. and Graves, J. (2020), How the Covid-19 lockdown affected gender inequality in paid and 
unpaid work in Spain, p. 5.
Romania, Constitution, Article 41(4).
Romania, Labour Code (Codul Muncii), Article 6(3).
Romania, Anti-discrimination Law, Article 6(b), (c).
Romania, Gender Equality Law, Article 7(c).

79 
80 
81 
82 
83  Germany, Pay Transparency Act of 30 June 2017, Official Journal 2017, p. 2152, https://www.gesetze-im-internet.de/

78 

entgtranspg/BJNR215210017.html.

84  German Federal Government (2019), Report on the implementation of the Pay Transparency Act with Comments by the 
Social Partners), https://www.bmfsfj.de/bmfsfj/service/publikationen/bericht-der-bundesregierung-zur-wirksamkeit-des-
gesetzes-zur-foerderung-der-entgelttransparenz-zwischen-frauen-und-maennern/137226.

28

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

employers and managers engage with the law and the fact that only 2 % of employees used their right 
to information. It is suggested that as earlier drafts of the Act were discussed and amended on many 
occasions, the means for the effective enforcement of equal pay was watered down. In France, there 
seems to be an explicit effort since 2017 to enrich the meaning of substantive equality by means of a 
more quantitative evaluation of corrective measures in the private sector, including a new decree on the 
gender pay gap of 2019, which was adopted to implement the law of 5 September 2018.85 Companies86 
must publish indicators each year relating to the pay gap between women and men. When the results 
obtained are under 75 points, the collective bargaining negotiations on equality will focus on adequate 
and relevant measures to correct the gender pay gap and programme annual or pluri-annual financial 
measures to close it.87 

In  Iceland,  the  new  Gender  Equality  Act  No.  150/2020  was  approved  in  December  2020  and  was  to 
take effect on 6 January 2021. Unlike the previous pay clause in Act No. 10/2008, the new act does not 
require that the employees work for the same employer and the words ‘working for the same employer’ 
in Article 19 of the previous GEA have been removed. Article 6 of the new Act contains a general provision 
on pay equality for women, men and people who are officially registered as gender neutral for the same 
jobs or jobs of equal value. Equal pay is pay determined in the same way for people independent of their 
sex and shall not involve any sex discrimination.

3.1.2	 Definition	in	national	law

While many countries have implemented the concept of pay as contained in the Recast Directive and as 
it ensues from the interpretation of the CJEU of Article 157 TFEU, there are also still quite a number of 
countries in which the concept is not clearly defined as such in law (Austria, Bulgaria, Estonia, Finland, 
Italy, Latvia, Norway, Sweden, United Kingdom) or where there is no single and exhaustive definition 
of pay provided for, such as in Belgium. While in some countries this has not caused problems, because 
of  the  way  that  legislation  has  developed  (United  Kingdom),  in  others  some  uncertainty  persists  as 
to whether it is understood in the same way as it is contained in EU law. In some of these countries, 
compliance with EU law can be deduced mainly from the case law (Latvia, Norway, Sweden) or from 
a web of different laws (Estonia, Malta) and in combination with collective agreements and case law 
(Austria, Italy). Collective agreements may also provide for definitions (Belgium). The definition contained 
in national law may also be less elaborate than in EU legislation, yet with the meaning being the same 
(Netherlands). In Portugal, the new legislation on pay transparency (Law No. 60/2018, of 21 August 
2018), has clarified the notion of remuneration and has been brought in line with Article 157(2) TFEU. 
This notion now explicitly includes other financial advantages apart from salary, including the payment of 
travel expenses and expenses relating to the performance of the work, bonuses, or premiums linked to 
productivity, seniority or good attendance. In Germany, the new Pay Transparency Act explicitly defines 
‘pay’, in line with the EU concept.

In  a  few  countries,  the  concept  still  does  not  (seem  to)  fully  comply  with  the  definition  and  scope  of 
Article 157(2) TFEU. In Lithuania, the Labour Code of 2016 contains a special provision (Section 26(4)) 
that is in line with the definition of pay under EU law, which states that, for the purposes of discrimination, 
pay shall also encompass all indirect payments related to the performance of work under the employment 
contract (Article 140(6) of the Labour Code). 

85 

Act No. 2018-771 5 September 2018 on the individual’s freedom to choose their future professional life (Loi n° 2018-771 du  
5 septembre 2018 pour la liberté de choisir son avenir professionnel), available at: https://www.legifrance.gouv.fr/affichTexte.
do?cidTexte=JORFTEXT000037367660&categorieLien=id.

86  More than 50 employees.
87 

Article D.1142-6; Decree No. 2019-15 of 8 January 2019; Guidelines No. 2019/03, Ministry of Labour on gender gap 
measures 25 January 2019 – Instruction, Ministère du Travail available at http://grand-est.direccte.gouv.fr/sites/grand-est.
direccte.gouv.fr/IMG/pdf/instr_egalite_professionnelle_25_janv_2019.pdf.

29

 
In  Slovakia,  the  definition  does  not  apply  to  all  remuneration  for  work  and  all  benefits  that  are  paid 
in  relation  to  employment  allowances,  discharge  benefits,  non-mandatory  travel  reimbursements, 
contributions from a social fund, supplementary payments to sickness insurance benefits, and contributions 
to supplementary pension saving funds are thus excluded from the notion of pay. Somewhat odd omissions 
may also be found in other domestic laws, such as the Belgian Gender Act, which does not expressly 
stipulate that it also covers work of equal value, and the Serbian law, which does not refer explicitly to 
remuneration ‘in kind’. Moreover, pay is understood to mean the earnings including tax and dues payable 
on earnings and all employment-related income, while the following are excluded: travel costs to and 
from work; time spent on business trips; and costs for accommodation and food for working in the field, 
if  the  employer  failed  to  provide  the  employee  with  accommodation  and  food  without  compensation; 
a retirement gratuity, of the minimum amount of three average monthly earnings; a refund of funeral 
expenses in the event of death of a member of immediate family, and to members of the immediate 
family in the event of death of the employee; and the compensation of damage sustained due to an injury 
at work or a professional illness; and employment anniversary bonus and solidarity assistance. 

The  definition  in  Polish  law  is  considered  deficient  to  the  extent  that,  when  speaking  of  work-related 
benefits, it omits the clarification included in the directive according to which the benefit may be both 
directly and indirectly related to employment and that it has to originate from the employer. Secondly, it 
also does not indicate a specific understanding of the principle of equal pay with regard to remuneration 
for work carried out in a piece-rate system88 as well as in a time-rate system.89 While the Romanian 
Labour Code fully transposes the equal pay principle and concept of pay, the Romanian Constitution uses 
a more limited formulation and the relevance of this has not been clarified so far by the Constitutional 
Court. As for the law of Montenegro, while the definition is mostly in compliance with the definition of 
Article 157(2) TFEU, it does not explicitly include cash and benefits in kind, although it can be considered 
that it does include both.

3.1.3	 Explicit	implementation	of	Article	4	of	Recast	Directive	2006/54

Article 4 of the Recast Directive requires national law to prohibit explicitly direct and indirect discrimination 
on grounds of sex with regard to all aspects and conditions of remuneration, but not all national legal 
systems provide for such an explicit stipulation (Latvia, Montenegro, Netherlands, Poland, Slovenia, 
Sweden, United Kingdom) or only partly (Czechia, Serbia). In Czechia equal pay for men and women 
is not explicitly mentioned, but the principle of equal pay for all employees apparently also includes equal 
pay for men and women. 

In Germany, gender discrimination concerning pay is covered by statutory law, applying to the labour 
market in general. German courts have generally stated that there is no legal rule providing for the same 
pay for the same work, but that there is a general prohibition of pay discrimination based on gender. 
Furthermore, while most wages and job classification systems in Germany are determined by collective 
agreements under the Act on Collective Bargaining, this act does not contain any provisions on equal pay. 
Even collective agreements with public services and social institutions still contain gender-discriminatory 
job classification systems. 

Although  the  new  Pay  Transparency  Act  2017  contains  an  explicit  prohibition  of  direct  and  indirect 
pay discrimination on the ground of sex/gender (including pregnancy and motherhood) and employers 
are  required  to  develop  a  non-discriminatory  payment  system,  it  still  does  not  tackle  discriminatory 
structures in collective bargaining and job classifications. On the contrary, when a collective agreement 
applies, the employer is not obliged to explain the criteria and procedures used in wage-setting, but can 

88 

89 

In this scheme, the level of an employee’s remuneration depends on the quantitative results of their work (the degree to 
which the standard was achieved, e.g. the number of shoes produced).
In the case of a time-based system, the amount of remuneration depends on the amount of time worked in a given 
settlement period. In this system, the remuneration rates are set in relation to the number of time units (an hour, a day, a 
week or a month) and work efficiency has no influence on the rate.

30

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

simply refer to the agreement for explanation and justification, despite the fact that there are still gender-
discriminatory job classifications established by collective agreements and that they remain one of the 
obstacles to equal pay. Furthermore, although the prohibition of pay discrimination is repeated under the 
heading ‘pay equality’, under German law there is still no obligation to pay the same remuneration for the 
same work, but rather just the prohibition of pay discrimination on the grounds of sex. 

Swedish  legislation  does  not  explicitly  mention  pay  discrimination.  This  ‘tacit’  way  of  regulating  pay 
discrimination can be criticised for not being sufficiently clear. The French Labour Code also states that 
a job classification system (grading system) must be based on rules allowing for the implementation of 
the equal pay principle. Section 7 of the Finnish Act on Equality defines direct and indirect discrimination 
and Section 8 prohibits pay discrimination, in principle using the definitions under Section 7. However, 
it may still be difficult to distinguish direct and indirect pay discrimination in practice. The preparatory 
works to the Act on Equality refer to the possibility that the general prohibition of discrimination under 
Section 7 may be applied to pay discrimination in some cases that fall outside the scope of Section 8, 
for instance when employees do not do equal work or work of equal value, if an employee is placed at 
a disadvantage on the basis of sex. Section 7 does not provide a victim of discrimination with the right 
to obtain compensation under the Act on Equality, but compensation under tort law or the Employment 
Contract Act is possible.90

3.1.4	 Permissibility	of	pay	differences	

Some countries do not provide for such a possibility in the (case) law (Austria, Cyprus, Czechia, Denmark, 
Latvia, Liechtenstein, Luxembourg, Malta, Poland, Romania, Serbia, Slovakia, Slovenia, Spain, 
Sweden) or it is ultimately left to the courts to decide on this (Latvia, Liechtenstein, Lithuania, United 
Kingdom). In Hungary, exemptions are not possible in direct wage discrimination cases.91 A resolution of 
the Equal Treatment Authority’s Advisory Body (from 2008) provided that the general rules of exemption 
provided  by  the  Equal  Treatment  Act  cannot  be  applied  in  sex-based  discrimination  cases  where  the 
principle of ‘equal pay for work of equal value’ is violated.92 In Sweden, pay differences are permitted if 
they are motivated by objective reasons. There is no exhaustive list of such reasons. For instance, they 
can relate to educational level, professional experience, to some extent age (youth wages), performance 
differences, supply and demand in the labour market, and collective bargain outcome (since wages in 
Sweden are not regulated in law, but set by collective agreements). Sex can never be an objective reason. 
In other countries, accepted justifications for pay differences in the law in the case of equal work or work 
of equal value include the following ones, ranging from job-related grounds to personal qualifications in 
relation to the job and to certain external factors that may induce a pay differential:

 –

 –
 –
 –
 –
 –
 –

 –

salary classification systems prescribed by law (Croatia, Turkey) or job classification systems in 
collective agreements (Austria, Germany);
quantity and quality of the work (Albania, Montenegro, Turkey) or productivity (Portugal);
being employed at different times (Malta, Netherlands);
responsibility (Albania, Finland);
working conditions, unpleasant or abnormal working hours (Albania, Finland, Montenegro);
being a manager (North Macedonia, Turkey);
performance of extra duties, ‘red circling’ or maintaining a personal rate of pay because of particular 
circumstances that are not based on sex (Finland, Ireland);
seniority (Belgium, Bulgaria, Poland, Portugal, Turkey);

Finland, Government Bill 57/1985 vp, p. 16.

90 
91  Hungary, Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV. törvény 

92 

az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról), 28 December 2003, Article 22(2).
Resolution No. 384/4/2008. (III.28.) TT. of the Advisory Body of the Equal Treatment Authority relating to the share of the 
burden of proof (Az Egyenlő Bánásmód Tanácsadó Testület 384/4/2008. (III.28.) TT. sz. állásfoglalása a bizonyítási kötelezettség 
megosztásával kapcsolatban), available at: https://www.egyenlobanasmod.hu/sites/default/files/content/torveny/
bizonyitasi_kotelezettseg.pdf.

31

 –

 –

 –

 –
 –
 –
 –
 –
 –

 –

 –
 –

differences  in  formal  qualifications  (educational  level)  for  the  job  (Albania,  Croatia,  Finland, 
Iceland, Netherlands, Turkey) or demand for higher qualifications for the performance of a wider 
range of tasks (Ireland);
relevant work experience from previous jobs with the same or other employers (Netherlands) or 
work experience and professional skills in general (Albania, Bulgaria, Finland, Iceland);
productivity  (Portugal),  personal  performance/work  results  (Finland,  Montenegro,  North 
Macedonia), economic performance (Estonia);
the lack of periods of absence, excluding the exercise of maternity and paternity rights (Portugal);
lack of periods of absence for workers (Portugal);
alignment with the last salary earned (Netherlands);
guarantees to receive a specific salary or supplement granted in the past;
competitiveness (Hungary);
labour shortages (in some circumstances) (Finland, Netherlands) and demand and supply in the 
labour market (Estonia);
the merging of two organisations or some other form of reorganisation (Netherlands), introduction 
of  a  new  pay  system,  or  changes  in  the  tasks  or  market-based  factors  (Finland,  but  only  on  a 
temporary basis);
being a specialist from abroad (Estonia);
pay negotiations (Netherlands).

In the Netherlands, justifications ensue from case law and have been reported to be offering too broad a 
scope. While the Netherlands Institute for Human Rights (NIHR) considers, for example, an alignment with 
the last salary earned to be a non-neutral criterion, the courts do not always follow this and consider it in 
principle a valid justification. An employer is also entitled to introduce new regulations for new employees, 
even though these may lead to pay differences between the new and the old personnel.93 

In Greece, differences in the legal nature of the employment relationship (e.g. one worker is employed 
under  a  private-law  contract,  while  another  is  a  civil  servant)  or  the  wage-fixing  instrument  (e.g.  one 
worker is covered by a collective agreement (CA), another is not, or they are covered by different CAs) are 
often used as justifications, even within the same company or service where the workers are employed 
by the same employer and perform the same work.94 This also occurs in Turkey, especially in the public 
sector. 

In France, pay differentials can only be justified if the work is not of the same value. Therefore, courts 
concentrate  on  the  value  of  jobs  and  not  on  the  justification  argument.  Seniority,  if  it  is  not  already 
included in a separate bonus, can be a justification for a disparity in pay.95 A recent case decided by the 
Court of Cassation provides an interesting illustration. The Court decided that the pay rise of a female 
employee  who  had  started  at  the  same  time  and  in  the  same  pay  grade  as  the  male  claimant,  was 
justified as it constituted compensation for the extra diplomas and additional experience that the female 
colleague had acquired before being hired for the job and that had in fact not been taken into account. 
In other words, for the Court of Cassation, the corrective (preferential) measure to compensate the wage 
disparity was justified and in conformity with the principle of equal pay for work of equal value.

Latvian courts are also more concerned with the establishment of the similarity of the cases than with 
the justification of differences. Spanish legislation does not make any express reference to justifications 
for  pay  differences,  thus  leaving  a  lot  of  leeway  for  courts  to  allow  these  or  not  to  consider  all  the 
circumstances  of  the  case.  For  instance,  the  Constitutional  Court  has  considered  that  justification  is 
possible for pay differences when jobs occupied mostly by men require more responsibility and a higher 
degree of concentration than jobs occupied mostly by women. 

93  Netherlands, The Hague Court of Appeal, JAR 2005/113, 4 February 2005.
94  Greece, SCPC (Civil Section) Nos 3/1997 (Plen.), 288/2003, 453/2002 (these are not gender cases).
95 

France, Judgment of the Court of Cassation Soc., 19 December 2007, No. 06-44.795.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

Romanian law does not address the issue of justifications at all, but leaves full discretion to individual 
negotiation of salaries. In North Macedonia, in the private sector there is also such discretion for the 
negotiation of salaries for managers. In Hungarian case law, employers may justify the wage difference 
by  referring  to  their  freedom  of  contract  and/or  the  differences  in  the  bargaining  power  of  different 
employees. 

While Greek law does not allow for justification of pay differentials, differences in the legal nature of the 
employment relationship (e.g. being under a private-law contract or being a civil servant) or the wage-
fixing instrument (e.g. being covered by a collective agreement or not) are often used as justifications, 
even in the same firm or service and for the same work. There is also a tendency to justify pay differences 
on budgetary grounds, by mere generalisations and by referring to the lack of assessment criteria for the 
work compared. 

The  Polish  Supreme  Court  considers  that  the  actual  performance  of  the  worker  determines  whether 
work is equal, and not the description of the obligations of the employee deriving from the employment 
contract. The Portuguese expert has noted that the permissibility of pay differences related to a worker’s 
periods of absence is liable to be indirect discrimination; the law in this regard explicitly indicates that 
the exercise of maternity and paternity rights (‘parenthood rights’) cannot justify different remuneration, 
because  other  leave  situations  are  included,  including  time  off  for  reasons  relating  to  care  for  other 
relatives, which is more common among women than among men. In addition, indirect discrimination can 
arise here, even in situations relating to a worker’s periods of absence to take care of children, apart from 
maternity, paternity and parental leave, because the notion of ‘parenthood rights’ is not clear in the law 
and therefore tends to be interpreted in a strict sense, e.g. only in relation to specific rights attached to 
maternity, paternity and parental leave. 

According to Section 9 of the Norwegian GEADA, differential treatment may be allowed in cases where 
that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving 
that aim are appropriate and proportionate. This provision applies to all areas of society, including pay, 
but it is also required that the characteristic in question is of decisive significance for the performance of 
the work or the pursuit of the occupation. In Iceland, equal pay certification does not prevent a company 
from implementing a pay policy that is performance based if the different wages are based on relevant 
considerations and not gender.

3.1.5	 Requirements	for	comparators

In many states a comparator is not required. The French Court of Cassation, for instance, holds that ‘the 
existence of discrimination does not necessarily imply a comparison with other workers’. A judge may thus 
find that a decision amounts to sex discrimination even when there are no men in the company who can 
be used as comparators. Spanish courts resolve equal pay cases by analysing the identity of functions 
or  their  equal  value,  without  considering  the  possibility  of  introducing  the  concept  of  (a  hypothetical) 
comparator, even if the law does not seem to exclude this possibility. The Hungarian expert has noted 
that while the law does not require a comparator, the review of the published cases reveals that taking, 
elaborating and contrasting the actual pay of the claimant with another concrete employee significantly 
improves the claimant’s chances of winning the case. But also referring to a hypothetical comparator is 
not excluded. In Denmark as well there is no legal requirement to this effect but in practice a comparator 
is often used to assert or prove discrimination, both within the same employer as well as across different 
sectors.  It  is  not  necessary  that  an  employer  employs  both  men  and  women  for  a  comparator  to  be 
applied.

However,  in  other  countries  an  actual  comparator  still  needs  to  be  identified  on  the  basis  of  the  law 
(Austria, Croatia, Cyprus, Czechia, Estonia, Finland, Germany, Ireland, Malta, Northern Ireland, 
Netherlands, Portugal, Romania, Slovakia, Sweden, United Kingdom). In Poland, it is only required 

33

in cases of direct discrimination. Some countries also allow for a hypothetical comparator96 (Albania, 
Austria, Germany, Norway, Poland, Romania, Sweden), while in others this is unclear, although not 
considered to be excluded (Iceland, Spain) and is left to the courts to be decided (Italy, Malta, Serbia). 
In  Cyprus,  the  definition  of  direct  discrimination  with  respect  to  equal  pay  for  men  and  women  for 
equal work or work of equal value allows a hypothetical comparator, however, it has not been tested in 
practice. In the United Kingdom, a hypothetical comparator may be relied upon but only where direct 
discrimination is concerned. In the recent Asda	v	Brierley	and	others	case, the UK Supreme Court held that 
the North hypothetical shall be applied in cases where no employees of the comparator’s group work at 
the claimant’s establishment. This means that the Court considers whether, hypothetically speaking, ‘the 
comparator’s group would have been employed on broadly similar terms to those which they have at their 
own establishment if employed on the same site as the claimants.’97 In yet other countries, the situation 
is  somewhat  more  diverse  as  the  law  itself  may  not  be  explicit  as  such  (Bulgaria,  Greece,  Latvia), 
although  case  law  does  show  a  comparator  being  required.  Thus,  in  Latvia,  the  Supreme  Court,  in  a 
recent judgment in an unequal pay case, held that a court must assess the real level of the professional 
qualifications of an employee (for example, their education or skills for the performance of a job, etc.), 
the character of the work in question and the employment conditions, and then compare these indicators 
with those of other workers in order to establish whether the claimant has performed equal work or work 
of equal value and whether they have been paid according to their qualifications and the character of 
the job in question.98 In Austria, it is both possible to refer to a hypothetical comparator, as well as to a 
comparable situation that lies in the past.99 

In  Greece,  the  definition  of  discrimination  may  be  considered  as  implicitly  requiring  a  comparator.  In 
Iceland, the prevailing comparator is the equal pay certification, which is now required for all employers 
with 25 or more employees on an annual basis, confirming that they meet the equal pay standards. In 
Germany, in practice, equal pay cases are not decided with regard to the sex and income of comparable 
employees100 but with regard to the most sophisticated job classifications set up by collective agreements 
which  are  not  challenged  by  the  courts.  Furthermore,  under  the  new  Statute  on  Pay  Transparency, 
employees (and civil servants, judges and the military) are entitled to obtain information on the gross 
remuneration  of  their  fellow  employees  doing  the  same  work  or  work  of  equal  value  and  up  to  two 
remuneration components. The employee exercising this right must identify the comparable same work 
or work of equal value and the comparison group of employees of the opposite sex must contain at least 
six people. However, this does not work out well in practice. The first evaluation of the Pay Transparency 
Act in 2019 reveals that so far the right to information has hardly been used.101 

In Ireland, there was a case of 14 claimants, clerical officers employed by the Department of Justice, 
Equality and Law Reform, who were assigned to clerical duties in the police force. They brought a claim for 
equal pay and the comparators were members of the force who were assigned to perform certain clerical 

96 

97 

The term ‘hypothetical comparator’ is not defined in national laws, but is rather implied by the wording of the provision 
in question. For example, in many cases, the national legislation will refer to discrimination occurring when a person is 
treated less favourably than another is, has been or would be treated in a comparable situation. See for example Austria, 
Equal Treatment Act for the Private Sector (Gleichbehandlungsgesetz, GlBG) BGBl I 66/2004, Section 5(1); Germany, General 
Equal Treatment Act of 14 August 2006 (Allgemeines Gleichbehandlungsgesetz), Official Journal 2006, p. 1897, Section 3(1); 
Poland, Labour Code Act (Ustawa: Kodeks Pracy) of 26 June 1974, consolidated text JoL 2018 Item 108, with amendments, 
Article 183a(3). 
Asda Stores Ltd v Brierley, Supreme Court [2021] UKSC 10, 26 march 2021, available at: https://www.supremecourt.uk/cases/
docs/uksc-2019-0039-judgment.pdf. 
Latvia, decision of the Supreme Court on 27 April 2017 in case No. SKC-792/2017, point 10.3.
Rebhahn, R. (2005) in Rebhahn, R. (ed.), Kommentar zum Gleichbehandlungsgesetz und GBK-GAW-Gesetz, § 5 GlBG Rz 3.

98 
99 
100  For an exceptional case of direct pay discrimination up to the end of 2012, see State Labour Court of Rhineland-Palatinate, 

Judgment of 13 January 2016, 4 Sa 616/14.

101  German Federal Government (2019), Report on the implementation of the Pay Transparency Act with Comments by the 
Social Partners), https://www.bmfsfj.de/bmfsfj/service/publikationen/bericht-der-bundesregierung-zur-wirksamkeit-des-
gesetzes-zur-foerderung-der-entgelttransparenz-zwischen-frauen-und-maennern/137226. 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

and  administrative  duties.  Following  on  the  judgment  from  the  CJEU  in  this  case,102  the  matter  was 
remitted to the High Court,103 which in turn remitted it to the Labour Court, stating that the Labour Court 
should adopt the following approach. Namely that the Labour Court should choose comparators drawn 
from the generality of all those engaged in clerical work for or as members of the police force; then the 
Labour Court should address the issue of whether or not the work performed by the claimants is like work; 
then if the work is like work, the Labour Court should address the issue as to whether or not the difference 
in pay is objectively justified. This will not involve consideration of the reasons for the assignment of 
members  of  the  police  force  to  certain  posts.  Industrial  relations  issues  cannot  of  themselves  be  the 
sole basis justifying a difference in pay, but regard may be had to industrial issues as one of a number 
of factors. In addition, consideration must be given to the context of the generality of those engaged in 
clerical work; this will extend to taking into account the nature of not only the clerical work but all police 
work, including all incidents of service in the police force. The matter is presently before the Labour Court 
which is to hear submissions as to how it should proceed in the selection of comparators. The most recent 
decision by the Labour Court was in November 2015.104

In  other  countries,  a  comparator  may  not  be  required  in  all  situations  (Estonia,  Netherlands,  North 
Macedonia), may be applied more leniently in some cases (Finland) or may not be explicitly required by 
law but sometimes in practice (Bulgaria). In the Netherlands, a comparator is not required in situations 
of possible indirect discrimination in which the effects of a certain rule or practice, e.g. the granting of 
extra pay to workers who are prepared to work overtime, is that substantially more men than women 
receive an advantage. In these situations, it must be examined whether there is an objective justification 
for  the  difference  in  pay.  The  normal  (stringent)  objective  justification  test  is  applicable  here.  In  this 
approach no specific comparator is needed, as different pay systems can be compared with one another. 
In most cases these systems or practices will be used within one company or group of companies, but 
theoretically it is possible that a comparison could be made between systems or practices that appear in 
a collective agreement or a statutory arrangement. 

In Finland, the use of a hypothetical comparator is not allowed, but in pay discrimination concerning 
pregnancy the comparison may be made with the person herself (if she had not become pregnant). In 
practice, the comparator requirement may be more flexible. For example, if a neutral norm has a differential 
impact on a group of people defined by having the same protected characteristic, this establishes the 
assumption  that  the  norm  itself  is  discriminatory.  Such  collective  considerations  are  not  necessary  in 
cases that address whether or not a norm that is per se neutral has been applied in a discriminatory 
manner. If the application of certain criteria cannot be objectively justified, then it can be assumed that 
pay differentials are caused by gender. There are also cases where the main issue has been whether a 
comparison may be made if there are both women and men among those receiving lower pay. 

The Labour Court has held that the burden of proof may be shifted onto the respondent employer if the 
claimant can present at least one comparator of the opposite sex who has better pay for equal work, 
irrespective of the fact that there are both women and men in lower and higher pay brackets doing equal 
work.105 However, the Supreme Court and the Supreme Administrative Court have previously decided that 
in cases concerning the new pay system for judges, since both men and women were placed in lower 
bracket offices, pay discrimination could not exist. In these cases the claimants had not even managed to 
establish an assumption of discrimination, which would reverse the burden of proof onto the respondent 

102  CJEU, Judgment of 28 February 2013, Kenny v Minister for Justice and Law Reform, C-427/11, EU:C:2013:122. For a complete 
commentary on this case, see Meenan, F., Enforcement of the principle of equal pay, European Equality Law Network 
(November 2016), available at: https://www.equalitylaw.eu/downloads/3950-paper-frances-meenan-workshop-equal-pay-
pdf-385-kb. 
Ireland, [2014] IEHC 11, Judgment of Mr. Justice McCarthy of 13 January 2014. For clarification, this case originated in an 
appeal on a point of law from a determination of the Labour Court of 27 July 2007 (EDA 13/2007). Certain questions were 
referred to the CJEU. The judgment was delivered on 28 February 2013. 
Ireland, Department of Justice, Equality and Law Reform v CPSU EDA1518. This decision was essentially a case management 
conference.

103 

104 

105  Finland, Labour Court TT:2002-7-10.

35

employer.106 It seems that neither the Supreme Court nor the Supreme Administrative Court proceeded 
to consider whether indirect discrimination could have been occurring. Evidence of indirect discrimination 
would  have  required  a  comparison  of  how  female  and  male  judges  were  positioned  in  different  pay 
brackets. 

In  North  Macedonia  and  Romania,  the  comparator  requirement  relates  only  to  cases  of  direct 
discrimination. In the latter country, the National Council for Combating Discrimination has also required 
parties to provide evidence regarding a real comparator, even if the law allows for a hypothetical one. This 
is explained by the fact that in practice salaries are established in direct negotiations between employer 
and  employee,  and  by  the  lack  of  norms  establishing  salary  schemes  that  would  in  fact  allow  for  a 
hypothetical comparator. Polish law is comparable in this regard, in that the written law also allows for a 
hypothetical comparator but case law indicates that it must be an actual comparator, and the prevalent 
view is also that a comparator may not be a person employed by another employer. Furthermore, Polish 
law stipulates the comparator requirement only explicitly for direct discrimination, yet such a requirement 
also seems to be implied in the law for indirect discrimination cases. In the United Kingdom, a hypothetical 
comparator may be relied upon only in direct discrimination cases, but case law on this is lacking so far. 

In the Netherlands a complex two-way approach is used, the first one requiring a concrete comparison 
of the salary of a person of one sex with that of a person of another sex. The comparator should be an 
actual person within the same company, so no hypothetical comparator is allowed. The second approach 
is not specific for equal pay, but is an application of the concept of indirect discrimination. In this approach 
a certain practice, e.g. the granting of extra pay to workers who are prepared to work overtime, may be 
contested if the result of this practice is that substantially more men than women receive the extra pay. 
It then has to be examined whether there is an objective justification for the difference in pay. In this 
approach no specific comparator is needed, as different pay systems can be compared with one another. 
In most cases these systems or practices will be used within one company or group of companies, but 
theoretically  it  is  possible  that  a  comparison  is  made  between  systems  or  practices  that  appear  in  a 
collective agreement or a statutory arrangement. 

In Greece, the provisions transposing the definition of direct discrimination from the directives allow a 
hypothetical comparator. However, according to Greek case law, applying the broader equal pay principle 
requires a comparator in the same enterprise or service or in the framework of the same wage-fixing 
instrument (e.g. collective agreement, statutory or administrative provision) and when there is no such 
comparator,  the  claimant  can  allege  that  they  fulfil  the  conditions  for  the  higher  pay  provided  by  an 
instrument for workers performing or having performed the same work, and claim the pay difference. In 
Estonia, a comparable employee means an employee working for the same employer, engaged in the 
same or similar work, but by default the comparison is made on the basis of the collective agreement and 
in the absence thereof a comparable employee in the same region is taken. In Malta, employees are to be 
compared with others in ‘the same class of employment’, with the same employer. Whether comparison 
of the position of employees with different employers is possible has not been tested as yet.

The above already reveals quite some difficulties that the requirement of a comparator may present in 
practice. A clear hurdle concerns the requirement that a comparator has to be employed by the same 
employer (Croatia, Estonia, Greece, Malta, Netherlands). In Croatia, as an exception, a comparator 
may be a person employed by different employers in the event of temporary agency work (where the 
agency and user are employers). Article 46(5) of the Labour Act (on employment contracts for temporary 
work) provides that the amount of the agreed salary of the assigned employee should not be ‘...lower 
and less favourable, respectively, than the salary (…) of an employee who is employed with the user in 
the same job, to which the assigned employee would have been entitled if he or she had entered into a 
contract of employment with the user.’ This provision is broad because it prohibits different salaries for 
the assigned employee and the employee working with the user irrespective of gender, i.e. it also applies 

106  Finland, cases from the Supreme Court KKO 2009:78 and the Supreme Administrative Court KHO 2005:51.

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European Union (TFEU) and Recast Directive 2006/54)

to employees of the same gender. In Greece, it is also considered problematic that, according to case law, 
the hypothetical comparator must perform or have performed the same work. Another hurdle concerns 
the point of reference that is to be taken for the comparison: formal requirements as entailed e.g. in a 
job classification system or the performance of actual tasks; whenever there is a legally prescribed salary 
classification system the performance of actual tasks will be irrelevant (Croatia). 

Case	law	related	to	comparators,	proof	and	evidence

National  case  law  reveals  the  problems  that  may  present  themselves  in  practice  in  relation  to  the 
requirement of a comparator. In Czechia, such a case was at the interface of the issue of determining 
‘equal value’ and proof. A woman working as a head physician at a hospital was earning considerably 
less than her male colleagues. The Public Defender of Rights came to the conclusion that if a female 
employee proves a difference in remuneration compared to her male colleagues performing work of equal 
value, it is up to the employer to provide evidence that the difference is not connected to gender. If the 
employer remunerates its employees according to a system which lacks transparency, it must prove that 
the system is set up to be neutral and does not lead to discrimination in remuneration. 

The  court  had  to  decide  whether  the  position  of  the  head  physician  was  different  because  different 
departments  at  the  hospital  differ  from  each  other  (i.e.  it  was  not  the  same  job  for  which  the  same 
remuneration would be required) or whether it was, indeed, work of the same value within the meaning 
of Section 110 of the Labour Code. The court concluded that work of the same value must be defined 
carefully, taking into account e.g. number of medical procedures performed, whether it is a surgical field 
or not, the ability of the head physician to ensure the functioning of the department by attracting a large 
number  of  patients  (with  financial  resources),  length  of  practice,  expertise  and  the  reputation  of  the 
primary practitioner in the field.107 The court also concluded that an assumption that the work was of the 
same value could not be derived just from the fact that the labour contracts of the two employees in 
question were very similar. 

A  recent  case  before  the  Estonian  Supreme  Court,108  concerned  the  cancellation  of  the  employment 
contract of a female lawyer in a regional office of the Tax and Customs Board in December 2015, for 
which  economic  reasons  were  given.  The  lower  level  courts  briefly  discussed  possible  discrimination 
in  relation  to  issues  around  the  extraordinary  cancellation  of  the  employment  contract  and  possible 
compensation to be paid to the claimant. The claimant stated that she was discriminated against when 
she was paid a lower wage compared to male colleagues and lawyers at the Tallinn office for the same 
work. She had worked for the Tax and Customs Board since 2004 and, due to the new law on the civil 
service,109 had been given a new employment contract in March 2013, just before new salary guides were 
adopted on 8 April 2013. The claimant noted that her salary level had stayed at the lowest level, but that 
given her long career and high competence, she should be paid at the higher pay level for lawyers. The 
claimant asked for compensation for the unpaid part of her pay between April 2013 and December 2015. 

The claimant was asked to provide the names of all comparators, e.g. names of male employees doing 
the same work. The claimant rejected the request and stated that names are not necessary as proof 
in discrimination cases. The Circuit Court had ruled that the claimant had not fulfilled the requirement 
to  provide  exact  evidence  and  so  it  ignored  the  discrimination  claim.110  The  court  decided  that  the 
claimant had discontinued the discrimination claim and so did not discuss the issue. The civil chamber 
of the Supreme Court found several procedural mistakes and determined that the cancellation of the 

107  Czechia, Judgment No. 78 EC 1342/2011 of the District Court in Blansko, of 30 June 2015. No ECLI available.
108  Estonia, Supreme Court, Judgment of the Civil Chamber, Insler v Tax and Customs Board, No. 2-16-708 of 21 November 2018.
109  The Civil Service Act entered into force on 1 April 2013, the number of civil servants was reduced and specialists were given 
the position of employees. The civil service is made up of officials and employees. An official is a person who is in the public 
administration service and is appointed to a post and an employee is someone recruited for a job in an authority.

110  Estonia, Supreme Court, Judgment of the Civil Chamber, No. 2-16-708 / 54 of 21 November 2018, available at: https://www.

riigiteataja.ee/kohtulahendid/detailid.html?id=238029596.

37

employment contract was void, due to the absence of a legal basis or the non-conformity with the law, or 
nullified, due to a conflict with the principle of good faith. The Court ruled that the former employer should 
pay the employee compensation. Unfortunately, the Supreme Court did not explore possible discrimination 
against the employee. 

In another case, the Supreme Court of Estonia also ruled that two different types of legal measures 
applied to two employees cannot be deemed to constitute discrimination, if these two employees cannot 
be considered to be comparable individuals.111 Further, there is no discrimination if two employees are 
indeed treated differently from one another, but that difference is due to objective reasons that are not 
related to the gender of the employees. The Supreme Court also set aside the required compensation for 
non-proprietary damage caused by the dismissal, because the claimant referred to economic harm (the 
lack of a job, the lack of income) and was unable to prove non-proprietary damage. This decision makes 
it extremely complicated, if not even impossible, to apply for non-proprietary damage in the future. The 
major arguments of the Supreme Court were that the claimant was in a higher position, had damaged 
the reputation of the employer and had shown no remorse for what had happened. The decisive factor 
was the fact that, unlike his colleague, the assistant manager had greater responsibility and his violation 
of the rules was more serious. Consequently, the difference in the employees’ treatment by the employer 
was considered justified.

The Dutch Court of Appeal of ‘s-Hertogenbosch ruled that an employer had not clarified why the work 
experience of the male comparator was of more value than the work experience of the female employee.112 
The employer also failed to explain why a reduction in the hours of the male employee justified a higher 
hourly  wage.  The  fact  that  the  employer  was  not  transparent  about  his  motives  for  paying  the  male 
worker a higher salary than his female colleague therefore led the court to rule that the employer had 
discriminated against the woman and had to pay to her the same salary as that paid to the man. The 
Netherlands Institute for Human Rights (NIHR) has published several opinions on equal pay. The NIHR 
examines – or asks a job classification and evaluation specialist to examine – whether a comparator does 
work of equal value. The outcome differs depending on the situation. Sometimes employees can indeed 
be compared,113 but sometimes the conclusion is that the comparator chosen by the claimant does not 
perform the same work or work of equal value.114

In Finland as well the choice of comparator and the burden of proof have been central in several cases. 
There is legal uncertainty as to when the employee has been able to provide facts from which it may 
be presumed that there has been direct or indirect discrimination. Finnish courts have come to different 
conclusions  in  the  so-called  ‘judge  cases’  that  were  brought  to  the  courts  when  the  pay  system  for 
judges was changed, and judges were redistributed among different pay categories. The definition of pay 
discrimination under Section 8 of the Act on Equality requires that the employer implements conditions 
on pay so that one or several employees are disadvantaged on the ground of sex. The Labour Court (in 
case TT:2002-7-10) accepted that the burden of proof shifted to the employer, when an employee had 
shown that their pay was lower than the comparators, who were of the opposite sex. The employee was 
not required to show that the disadvantage was caused by their sex in order to shift the burden of proof. 
The Labour Court required that the employer must justify pay differentials in each case. 

Later, Supreme Court case KKO 2009:79 and Supreme Administrative Court case 2005:51 were based 
on  a  different  interpretation.  These  courts  held  that  the  employees  had  not  been  able  to  establish  a 
presumption of discrimination to shift the burden of proof onto the respondent, as the courts assumed 

111  Estonia, Supreme Court, Judgment of the Civil Chamber, No. 3-2-1-135-11 of 4 January 2012.
112  Netherlands, Court of Appeal ’s-Hertogenbosch, JAR 2013/13, 13 November 2012 and JAR 2013/106, 5 March 2013.
113  Netherlands, College voor de Rechten van de Mens, Opinion 2012-142, 15 August 2012: unequal pay because male 

colleague was graded three steps higher, because of shortages on the labour market, negotiations and previous work 
experience.

114  Netherlands, College voor de Rechten van de Mens, Opinion 2018-30, 30 March 2018: no unequal pay because the 

comparators have a higher position. 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

that sex was not the ground of the disadvantage, as both women and men were placed in lower pay 
categories. 

In Hungary, in 2018, the Equal Treatment Authority established direct discrimination in a case in which 
a civil servant working in a public health institution on labour, fire security and safeguarding complained 
that her salary was lower than men who worked in the same field.115 In another case, in 2017, the Equal 
Treatment Authority skilfully used statistical evidence to establish a case of indirect wage discrimination.116 
In this case, female workers claimed that they were victims of indirect discrimination when they had not 
received  their  extra  ‘13th  month  payment’  (an  in-cash  benefit)  due  to  being  on  sick  leave  with  their 
children.  The  preconditions  for  this  benefit  had  been  set  by  the  applicable  collective  agreement.  Only 
employees  who  were  absent  from  work  for  fewer  than  25  days  per  year  were  eligible  to  receive  the 
benefit. The calculation of the workers’ days of absence did not include annual paid holiday, work-related 
illness,  or  illness  which  needed  inpatient  hospital  care.  The  mothers  of  young  children  claimed  that, 
even  though  the  regulations  were  seemingly  impartial,  they  were  disproportionately  detrimental  and 
discriminatory towards mothers with children under the age of 12, which is the age limit for eligibility 
for sickness payments based on children’s rights under the social security scheme. The Equal Treatment 
Authority conducted a statistical investigation comparing the number of workers who were and were not 
eligible for the benefit and the total number of workers, and the number of female workers who had and 
did not have children under the age of 12. The statistical investigation showed that the rule determined by 
the collective agreement was disproportionately disadvantageous to female workers with young children 
compared to male or female workers who had no children. On the basis of the statistical evidence, the 
Equal Treatment Authority established indirect discrimination and ordered the employer to eliminate it.117 
This case is a very important stepping-stone in Hungarian anti-discrimination case law, because it sets a 
good example of how to investigate indirect wage discrimination cases and how to collect, examine and 
evaluate statistical evidence. 

3.1.6	 Existence	of	parameters	for	establishing	the	equal	value	of	the	work	performed

Interestingly, it appears that national law specifies (to some extent) how and by what criteria the equal 
value  of  work  performed  should  be  established  in  only  about  one  third  of  the  countries  covered  by 
this report (Bulgaria, Croatia, Czechia, Finland, France, Germany, Hungary, Ireland, Luxembourg, 
Montenegro, Norway, Poland, Portugal, Serbia, Spain, Sweden, United Kingdom). The applicable 
law in Cyprus contains an open-ended list of parameters to be considered when establishing equal value. 
In Norway as well the parties can in principle raise all aspects/parameters that they consider relevant. 
Criteria are of a personal, job-related and labour-market nature:

 –
 –

 –

 –
 –
 –
 –
 –

knowledge (Luxembourg, Norway, Sweden);
professional qualifications (including titles and diplomas) and vocational training (Albania, Cyprus, 
France,  Germany,  Hungary,  Luxembourg,  Malta,  Montenegro,  North  Macedonia,  Norway, 
Poland, Portugal, Serbia, Spain);
professional  (work)  experience  (Albania,  Bulgaria,  France,  Hungary,  Luxembourg,  North 
Macedonia, Poland, Portugal, Spain);
seniority (Bulgaria, Cyprus, Malta) or experience (Luxembourg);
skills (Croatia, Ireland, Malta, Montenegro, Poland, Serbia, Sweden, United Kingdom);
performance (Montenegro, Spain);
work results (Czechia);
nature of the job (Albania, Croatia, Cyprus, Finland, Germany, Spain), plus quantity and quality 
(Albania, Finland, Hungary, Portugal);

115  Hungary, Equal Treatment Authority (Egyenlő Bánásmód Hatóság) Decision No. EBH/152/2018.
116  Hungary, Equal Treatment Authority (Egyenlő Bánásmód Hatóság) Decision No. EBH/130/2017.
117  Hungary, Equal Treatment Authority (Egyenlő Bánásmód Hatóság) Decision No. EBH/130/2017.

39

 –

 –
 –

responsibilities/strenuousness/decision-making/significance  (Albania,  Croatia,  Cyprus,  Czechia, 
France,  Hungary,  Luxembourg,  Ireland,  Lithuania,  Montenegro,  Norway,  Poland,  Portugal, 
Serbia, Sweden, United Kingdom);
complexity (Czechia);
physical efforts, manual work (Albania, Croatia, Cyprus, France, Hungary, Luxembourg, Ireland, 
Norway,  Poland,  Portugal,  Serbia,  Sweden,  United  Kingdom);  according  to  the  ECJ,  payment 
based on physical effort may be indirectly discriminatory against women.118

 – mental effort, stress (France, Hungary, Luxembourg, Ireland, Norway, Poland, Portugal, Serbia, 

 –

 –
 –

Sweden, United Kingdom);
working  conditions  (Albania,  Croatia,  Cyprus,  Czechia,  Hungary,  Finland,  Germany,  Ireland, 
Montenegro, Norway, Portugal, Spain, Sweden);
whether substitution for one another is possible (Croatia);
labour-market conditions (Hungary) and market value; in Norway a recurring point of discussion is 
to what extent this can justify unequal pay.

In Spain, the Council of Ministers adopted Royal Decree 902/2020 in October 2020, on equal pay for 
women  and  men,  which  was  to  enter  into  force  in  April  2021.119  It  develops  the  definition  of  work  of 
equal value, with clarifications of the terms of the definition. It also enumerates examples of parameters 
which might constitute relevant factors in determining equal value. Finally, it requires that three criteria 
are applied for the correct evaluation of jobs: relevant factors are those related to the activity and that 
are actually present in its performance (adequacy), all the conditions of the position must be taken into 
account,  without  neglecting  any  (completeness),  and  there  must  be  clear  mechanisms  to  identify  the 
factors that have actually been taken into account in the determination of pay and they cannot be factors 
or social assessments that reflect gender stereotypes (objectivity). 

For France, the list of criteria contained in the law is not exhaustive and this is also the case for the 
United  Kingdom.  The  Hungarian  expert  has  noted  that  the  criterion  of  labour-market  conditions  in 
the relevant provision of the Labour Code opens up the possibility for nationwide employers to provide 
different  wages  in  different  parts  of  the  country.  This  criterion  is  considered  to  be  an  odd  fit  with  the 
law at issue, as it does not deal with the individual (as all the other criteria do) and it also provides too 
much leeway for employers. In Slovakia, the definition of work of equal value is not sufficiently clear. 
The  Labour  Inspectorate  (and  likely  also  other  actors)  has  problems  in  its  application  when  assessing 
comparable  work  complexity,  responsibility  and  strenuousness,  especially  when  carrying  out  labour 
inspections focusing on this area. The legislation of Slovakia does not regulate objective criteria (such 
as educational, professional and training requirements, skills, effort and responsibility, work undertaken 
and  the  nature  of  the  tasks  involved).120  In  Finland,  very  dissimilar  jobs  can  be  considered  to  be  of 
equal value, if they are equally demanding. Given the deeply gender-segregated labour market, this is of 
particular importance. In deciding whether equal work can be established, attention shall also be paid to 
the differences used in job classifications. However, the preparatory works also state that if the system 
of classification used in a collective agreement de	facto discriminates on the basis of gender, the social 
partners shall modify the agreement in question.121 The Equality Board has adopted a similar approach in 
a case on pay discrimination.122 More generally, in Turkey, there is a tendency to justify pay differences 
by mere generalisations.

In  other  countries,  it  is  left  largely  to  the  social  partners  to  deal  with  this  in  collective  agreements 
(Austria,  Bulgaria,  Finland,  Turkey).  In  Austria,  work  evaluation  systems  are  contained  either  in 
collective agreements or in obligatory agreements between works councils and employers and in some 

118  Judgment of 1 July 1986, Gisela Rummier v Dato – Druck GmbH, Case 237/85, EU:C:1986:277, para. 24.
119  Royal Decree 902/2020 on equal pay for women and men (Real Decreto-ley 902/2020 de igualdad retributiva entre mujeres y 

hombres), 13 October 2020, https://www.boe.es/diario_boe/txt.php?id=BOE-A-2020-12215.

120  As recommended in point 10 of the Recommendation 2014/124/EU. 
121  Finland, Government Bill HE 57/1985, 19.
122  Finland, Equality Board opinion No. L 2/2005.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

cases in individual agreements between employers and employees. Equal treatment law, however, obliges 
all parties at every level of collective bargaining to apply the equal pay principle and to ensure that no 
discriminatory criteria for work evaluation processes are implemented. 

In yet other countries, it is mainly equality bodies that provide for guidance in this respect (Belgium, 
Estonia).  The  Belgian  Institute  for  the  Equality  of  Women  and  Men  thus  issued  a  methodological 
instrument, the ‘Gender neutral checklist for job assessment and classification’, which was given legal 
recognition in the sense that when a joint sector committee adopts a job classification system, the latter 
must now be submitted to a department of the federal Ministry of Employment for an assessment of its 
gender neutrality, with the checklist being one element to be taken into consideration for this purpose. 
Although there are no provisions in Estonian law regarding criteria for work of equal value, requirements 
can  be  derived  indirectly  from  other  provisions,  such  as  for  example  employers’  obligation  to  protect 
employees  against  discrimination  and  to  keep  pay  regulations  and  job  descriptions  and  specifications 
gender neutral. While there has not been any case law on this issue as of yet, there are a few opinions 
from the Estonian Gender Equality and Equal Treatment Commissioner, held that sex discrimination had 
occurred  in  cases  where  a  job  evaluation  had  been  carried  out.  In  North  Macedonia,  the  Ministry  of 
Information  Society  and  Administration  publishes  a  job  classification  system  without  determining  pay, 
but  based  on  the  same  criteria  for  both  men  and  women.  It  is  applicable  to  all  public  administration 
employees, not just those of this Ministry, but not to other employers in the public sector or those outside 
the public sector. 

In Croatia, the employer is obliged to pay the salary stipulated by regulations, collective agreements, 
employment rules or employment contracts. If the basis and parameters for the determination of salary 
are  not  stipulated  in  a  collective  agreement,  any  employer  employing  more  than  20  employees  shall 
stipulate them in employment rules. In the absence of such agreement and rules, and if the employment 
contract does not provide sufficient information to determine the salary, the employer is obliged to pay 
the  employee  an  ‘adequate  salary’.  An  adequate  salary  is  considered  as  the  salary  usually  paid  for 
equal work, and if this cannot be determined, the court will decide on it in accordance with the given 
circumstances. 

Dutch equality law stipulates that work must be valued on the basis of a sound system of job evaluation. 
The idea behind this rule is that employers should make their reward systems transparent. Greek law 
refers to ‘professional’ instead of ‘job’ classification and also refers to the use of ‘personnel evaluation’, 
which is considered misleading, as it may imply that the classification and evaluation concern the worker 
rather than the job content, as required by the CJEU. In Iceland, job classification systems are used at the 
municipal level and these systems base the evaluation not on the performance of the employee but entail 
analysis of the basic requirements that apply to those carrying out the job. In Luxembourg, Article L225-3(2) 
of the Labour Code incorporates the obligation for classification systems to have common criteria for 
women and men. In Croatia, many collective agreements include a general provision on equal pay for 
equal work, but without further explanations or parameters.

In Iceland, the Equal Pay Standard is also intended to make pay, and any differences in pay for similar 
work,  more  transparent  but  it  does  not  demand  the  same  uniform  pay  system  for  all  companies  and 
institutions.  One  of  the  biggest  challenges  enterprises  face  in  the  implementation  of  the  Standard  is 
classifying which jobs are of the same or equal value. The Standard requires each workplace to introduce 
the same four to five key criteria with sub-criteria under each one. The Standard highlights four main 
criteria  (IST  85:  2012,  Annex  B):  expertise  /competence,  responsibility,  strain  and  working  conditions. 
These must be elaborated with specific content. Companies may have different (sub)criteria that make 
sense for each business, but the Standard obliges them to work out a more formalised system for their 
pay decisions, e.g. by carrying out wage analysis. This requires that jobs are classified by evaluating them 
against each other and assigning them weight. These are then used as a uniform measure to classify all 
jobs, so that the jobs within each workplace are comparable to each other on the basis of the uniform 
classification and salary system. In July 2019, a new pay-analysis tool called Embla was designed for 

41

public institutions. A special department within the Ministry of Finance dealing with terms and human 
resources developed Embla in co-operation with Advania (a Nordic information technology corporation). 
Embla is directly connected with human resources and is based on a mathematical model in the toolbox 
on the government website. It was due to be launched for the general labour market in 2020.123

Case law approaches

In some countries, specific parameters for the determination of ‘equal work’ and ‘work of equal value’ 
ensue from case law. The Greek expert has noted that in ‘equal value’ cases under the broader equal 
pay principle, the typical major premise is that the equal pay principle applies to ‘workers employed by 
the same employer, who belong to the same category, have the same formal qualifications and provide 
the same services aimed at serving the same category of needs, under the same conditions’. So, workers 
with different qualifications or performing different duties are not compared, even where they perform the 
same work under the same conditions. Some judgments require that the content of the work be specified, 
but the criteria are unclear. 

Swedish case  law contains a few old  but really  instructive cases as  regards  the  comparison  of  work 
claimed to be of equal value.124 Two of them concern Örebro County and the health sector. The issue at 
stake was whether the pay of a midwife was discriminatory as compared to that of a hospital technician. 
The Labour Court did not exclude the possibility that the work of a midwife and a hospital technician could 
be compared and found this to be of equal value, but in this case did not find the method used by the 
Equality Ombudsman (Diskrimineringsombudsmannen	– DO) to be sufficient to prove it. No discrimination 
was  thus  found.  The  second  case  also  concerned  alleged  pay  discrimination  against  a  midwife  as 
compared  to  a  hospital  technician.  In  this  case,  the  midwife  and  the  technician  were  indeed  found  to 
perform work of equal value following an assessment in terms of knowledge and skills, responsibility, 
effort and working conditions (now part of the definition of work of equal value according to the 2008 
Discrimination Act). A prima facie case of pay discrimination was thus found. The Labour Court, however, 
accepted the employer’s objection that the higher wages of the technician were due to market forces – 
there  was  an  alternative  labour  market  for  technicians  with  significantly  higher  wages,  an  acceptable 
motive to adjust the wages of technicians to a somewhat higher level. There was thus no discrimination. 
This can be compared with the ‘parallel’ Labour Court Case 2001 No. 76, in which a nurse and a hospital 
technician were compared and their work was found to be of equal value, but the wage difference could 
be explained by market reasons. Thus, in this case too the wage discrimination claim was dismissed. 

The  Italian  Tribunal  of  Aosta  of  13  April  2016  ascertained  gender  discrimination  in  pay  where  a 
female manager, in the head office of the accounts department of the local casino, had been paid about 
EUR 92 000 a year whereas her male colleagues had been paid about EUR 140 000 a year on average 
and some other male employees at a lower level received higher remuneration than she did. This case 
has to be recorded as gender discrimination in pay, which is taken to court very rarely in Italy. Moreover, 
the judgment shows a rigorous interpretation of Article 28 of Decree No 198/2006, which provides the 
principle of equal pay for equal work. In fact it states that the intention to discriminate as well as the 
possible fairness of the remuneration considering the job and the minimum wages provided by collective 
agreements are useless: the discrimination is proved by the mere fact that the female worker received 
a  lower  wage  compared  to  male  colleagues  while  she,  as  a  manager,  had  higher  responsibilities  and 
weaker protection against dismissal. The judgment awarded the worker damages of about 41 % of her 
remuneration, considering that a fair remuneration could amount to EUR 130 000 a year (this was a little 
higher than that of the better paid employees). 

123  https://www.stjornarradid.is/verkefni/mannrettindi-og-jafnretti/jafnretti/jafnrettisthing-2020/; https://www.stjornarradid.
is/verkefni/mannrettindi-og-jafnretti/jafnretti/jafnrettisthing-2020/; https://www.fjs.is/utgefid-efni/radstefnur-fjs/; https://
www.stjornarradid.is/lisalib/getfile.aspx?itemid=7f13c41c-5323-11ea-9455-005056bc530c. 

124  Sweden, Labour Court Case 1996 No. 41 as compared to Labour Court Case 2001 No. 13.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

Before the Spanish law was amended in March 2019, Spanish legislation did not lay down parameters 
for establishing the equal value of work performed. Thus the concept was addressed through decisions 
of the Constitutional Court and Supreme Court. For example, the Spanish Constitutional Court has issued 
several  rulings,125 pointing  out  that  systems  of  professional  classification  and  promotion  must  rely  on 
criteria  which  should  be  neutral  and  not  result  in  indirect  discrimination,  e.g.  using  ‘physical  effort’  or 
‘arduous work’ as a reason to give higher value to men’s activities.126 The Supreme Court also established 
that workers at the same company doing different work deserve the same payment if the difference is 
based on the fact that the kind of jobs done mostly by women are undervalued in relation to the jobs 
occupied mostly by men.127 The Supreme Court considered, in relation to a hotel, that the chambermaids 
(predominantly women) were performing work of equal value to that of the bartenders (mostly men), on 
the basis of which they deserved equal pay.128 The jobs were considered to be of equal value because 
both were on Level IV of the wage structure set out in the applicable collective agreement.129 

In  Norway,  a  landmark  case  before  the  Labour  Court130  concerned  an  equal  pay  claim  by  female 
bioengineers as compared to other types of engineers who were all male, the bioengineers being paid 
lower hourly wages than the other engineers. The court found, after a thorough and specific evaluation of 
the various elements of the job tasks, that it was indeed work of equal value and that the equal pay rule 
had been violated. The Court found that the clause collectively negotiated was invalid, while the remaining 
part of the collective agreement remained valid. Another landmark case is Tribunal Case 42/2009 where 
a municipality was ordered to remedy the error of not paying equal pay to women working in afterschool 
care  compared  to  men  in  equivalent  positions  as  ‘work  leaders’.131 The  Equality  Tribunal  undertook  a 
specific evaluation of the job tasks at the two workplaces.

In a case before the Icelandic Supreme Court the issue concerned whether jobs at the same level in 
the hierarchy were of equal value; the job of an equality officer in the municipality whose wages were 
based on a job evaluation linked to collective agreements, as opposed to the job of an employment officer 
with higher wages as the post was held by an engineer and the evaluation was linked to the collective 
agreements for engineers. The Supreme Court held that, in order for jobs to be considered of equal value, 
an all-inclusive evaluation was needed; although aspects of the jobs were different, the Court considered 
that the aim of the Gender Equality Act would not be achieved if wage equality was only to reach people 
within the same class of work, as freedom of contract on the labour market was subject to the wage 
equality provided for in the GEA. In this case the claimant had shown that she had been discriminated 
against as the jobs were comparable in substance and form.132 

In Belgium, a furniture factory had classified its blue-collar workers in four categories, but all female 
workers belonged to the third one. One of them took legal action, claiming that she was performing the 
same tasks as the men in the first category, who were entitled to higher remuneration. After hearing a 
number of workers as witnesses, the labour court in Bruges concluded that the claim was valid and that 
the  employer  had  been  discriminating  against  women.  Fixed  damages  equal  to  six  months’  pay  were 

125  For instance, Spain, Judgment of the Constitutional Court 58/1994 of 28 February 1994, ECLI:ES:TC:1994:58:  

http://hj.tribunalconstitucional.es/es/Resolucion/Show/2575.

126  For instance, Spain, Judgment of the Constitutional Court 145/1991, of 1 July 1991, ECLI:ES:TC:1991:145:  

http://hj.tribunalconstitucional.es/es/Resolucion/Show/1784.

127  Spain, Judgment of the Supreme Court of 14 May 2014, appeal number 2328/2013, ECLI:ES:TS:2014:1908  

https://www.poderjudicial.es/search/contenidos.action?action=contentpdf&databasematch=TS&reference=7084867& 
links=&optimize=20140602&publicinterface=true.

128  Spain, Judgment of the Supreme Court of 14 May 2014, appeal No. 2328/2013.
129  Spain, Judgment of the Supreme Court of 14 May 2014, appeal number 2328/2013, ECLI:ES:TS:2014:1908  

https://www.poderjudicial.es/search/contenidos.action?action=contentpdf&databasematch=TS&reference=7084867& 
links=&optimize=20140602&publicinterface=true.

130  Norway, ARD-1990-148. 
131  Norway, http://www.diskrimineringsnemnda.no/nb/innhold/side/vedtak.
Iceland, Supreme Court case No. 11/2000, judgment of 31 May 2000.
132 

43

allowed to the claimant.133 When the employer appealed, the Labour Court of Appeal in Ghent (division of 
Bruges) completely upheld the ruling.134 

The French expert has also reported three relevant cases from the Court of Cassation, dating from 1997, 
2010 and 2014, which concentrated on the issue of equal work and work of equal value.135 In Malta, a 
case136 investigated by the National Commission for the Promotion of Equality (NCPE) in 2015 addressed 
the  issue  of  pay  and  this  was  the  subject  of  an  article  published  by  the  Times	 of	 Malta.137 The  NCPE 
concluded an investigation138 following a complaint from a female employee that she was receiving a 
lower wage than male employees who were at a similar or same level and had similar responsibilities. 
The NCPE’s commissioner deemed that the company’s arguments that there is no set salary scale for 
managers should not be detrimental to the company’s employees and that the company should strive for 
more transparency in the manner in which wages are set. 

According  to  the  German  expert,  German  courts  have  supported  the  deficiencies  of  statutory  law  by 
establishing  sophisticated  differences  between  the  principle  of  equal  pay  and  the  prohibition  of  pay 
discrimination, giving broad leeway to collective bargaining139 and refusing to review complicated work 
assessment procedures due to lack of criteria or displaying gender stereotypes to found their decisions. 
Legal  action  against  pay  discrimination  has  only  been  successful  in  some  cases  concerning  pensions. 
Before the 2017 Pay Transparency Act entered into force, courts decided time and again that neither 
Article  157  TFEU  nor  Sections  1  or  7  of  the  General  Equal  Treatment  Act  provide  for  the  general 
principle of ‘the same pay for the same work’ but only apply in cases of sex/gender discrimination which, 
unfortunately, could almost never be found or proven.140

In Poland, a number of cases have related to situations where employees claimed to be unequally paid 
for equal work, but not on the grounds of sex. However, the findings as to what should be taken into 
account when determining pay for equal work and what should be understood as work of equal value 
are also relevant in cases of gender discrimination. In the judgment of 9 May 2014,141 the Supreme Court 
generally stated that equality is not the same thing as equal treatment, as it may require differential 
treatment in order to equalise opportunities or ensure equal results, or to reward and motivate the best 
employees financially. Different treatment of workers in terms of employment, including pay, is possible. 
However, it must be based on a legitimate need for which such differentiation is allowed. In a ruling of 
11 October 2013,142 the Supreme Court clarified what permissible reasons are for wage differentiation, 
stating that equal work is work of the same nature, the same with regard to the qualifications required to 
perform it, the conditions under which it is performed and the quantity and quality of the work. However, 

133  Belgium, Labour Court Bruges, Judgment of 25 June 2013, Algemene Rol No. 07/127676/A, unreported. The fact that the 
expert only heard about this case with a four-year delay is due to the haphazard way in which case law is made available 
(with the sole exceptions of decisions of the Constitutional Court, the Conseil d’État/Raad van State – higher administrative 
court – and, not exhaustively, the Court of Cassation).

134  Belgium, Labour Court of Appeal Ghent, Judgment of 5 December 2014, Algemene Rol No. 2013/AR/197, unreported.
135  France, Judgment of the Court of Cassation of 12 February 1997, No. 95-41694. Judgment of the Court of Cassation of 

6 July 2010, No. 09-40021, Judgment of the Court of Cassation of 22 October 2014, No. 13-18362.

136  NCPE (2016) Annual report 2015, p. 38. https://ncpe.gov.mt/en/Documents/Our_Publications_and_Resources/Annual_

Reports/NCPE%20AR%202015.pdf.

137  Times of Malta (2018), ‘Woman finds male colleagues are paid € 500 more per month - investigation proves her right’, 

24 January 2018, available at: https://www.timesofmalta.com/articles/view/20180124/local/woman-finds-male-colleagues-
are-paid-500-more-per-month-investigation.668732.

138  NCPE (2016) Annual report 2015 https://ncpe.gov.mt/en/Documents/Our_Publications_and_Resources/Annual_Reports/

NCPE%20AR%202015.pdf.

139  There is only one judgment (Federal Labour Court, judgment of 20 August 2002, 9 AZR 353/01) in favour of a female 

applicant and declaring regulations of a collective agreement to be unconstitutional, but as the applicant lost her vacation 
benefits due to her maternity leave taken before birth, this might rather be seen as a decision upon maternity protection 
although involving equal pay. 

140  E.g. Germany, Federal Administrative Court, Judgment of 9 April 2013, 2 C 5/12; Federal Labour Court, Judgment of 

25 January 2012, 4 AZR 147/10; State Labour Court of Rhineland-Palatinate, Judgment of 11 October 2018, 5 Sa 455/15; 
State Labour Court of Baden-Württemberg, Judgment of 21 October 2013, 1 Sa 7/13; Labour Court of Berlin, Judgment of 
1 February 2017, 56 Ca 5356/15.

141  Poland, Supreme Court, Judgment of 9 May 2014, S.W. v Polish Railways, I PK 276/13. 
142  Poland, Supreme Court, Judgment of 27 June 2013, III PK 28/13.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

it also considered that the quantity and quality of work performed constitute acceptable premises for 
wage differentiation.143 

Another example of work in the same position (equal work) was dealt with in the jurisprudence of courts 
of appeal. The Court of Appeal in Szczecin in its judgment of 6 March 2018144 thus stated that: ‘There is 
no rational argument in support of the thesis that an employee currently employed in a given position 
should  receive  the  same  remuneration  as  an  employee  previously  employed  in  the  same  or  a  similar 
position, or a few years back. The essence of the right guaranteed in Article 183c of the Labour Code is the 
equality of employees in the process of providing work, and not the guarantee of obtaining remuneration 
at a specified level of value’. In its judgment of 7 February 2018,145 the Supreme Court held that length 
of service may constitute a justified reason for a pay differentiation when the employer does not provide 
for a length of service allowance, and when professional experience translates into the quality of the 
employee’s length of service. However, it is not permissible to differentiate remuneration twice on the basis 
of the same criteria: length of service, by taking it into account when determining the basic remuneration 
rate, and then by also granting the length-of-service allowance. 

In a judgment of 8 December 2015,146 the Supreme Court noted that the criterion of length of service is 
not, in itself, a sufficient parameter for determining whether the work of compared employees is equal or 
of equal value, as provided for in Article 183c(1) of the Labour Code, as it does not refer to the objective 
characteristics  of  the  work  performed.  At  the  same  time,  length  of  service  may  justify  differentiation 
of remuneration components other than the length-of-service allowance for employees performing the 
same or equal work or work of equal value only if the practice and greater professional experience gained 
during a longer period of service at a comparable workplace objectively justifies a higher remuneration 
for employees with higher qualifications and higher professional efficiency resulting from a longer period 
of service at the same workplace. 

Subsequent cases concerned the situation of alleged unequal pay for work of equal value. In a judgment of 
14 March 2018,147 the Supreme Court ruled that the same description of the position held by the claimant 
at work, as compared to other employees, namely ‘chief (main) specialist’ does not determine ipso	jure 
that such employees provide work of equal value. When dismissing the claimant’s cassation appeal (for 
a  technical  reason)  the  Supreme  Court  indicated  ‘for  the  record’  that  in  the  employer’s  organisational 
structure  there  was  only  one  human  resources  position,  which  was  occupied  by  the  claimant.  The 
comparison of her work with the work of other people occupying the position of ‘main specialists’ in the 
company, such as an accountant, manager or PR specialist, in terms of the scope of described duties, 
required  professional  qualifications  and  rules  of  liability,  which  were  ‘diametrically’  different  from  the 
scope  of  duties  performed  by  the  applicant.  This  was  the  reason  why  there  was  no  violation  of  the 
principle of equal treatment in this case. This judgment raises doubts as to whether the Supreme Court 
in the circumstances of this case was entitled to make such a categorical statement without focusing on 
detailed, separate examination of each of these positions. 

The  issue  of  the  right  to  remuneration  was  also  raised  in  a  situation  where  the  position  occupied  by 
the applicant was unique in the organisational structure of a given employer. In its decision of 25 April 
2018,148 the Supreme Court held that: ‘In the case of performance of employee duties in a position which 
is  not  repeated  in  the  organisational  structure  of  the  employer,  there  is  no  reasonable  possibility  to 
indicate and verify objective criteria for comparability of equal work for which there is the right to equal 
remuneration.’ Admittedly, this ruling was made in the context of dismissing the cassation appeal due 

143  Similar argumentation can be found in Poland, Supreme Court, Judgment of 14 December 2017, II PK 322/16.
144  Poland, Court of Appeal in Szczecin, Judgment of 6 March 2018, III Apa 20/17.
145  Poland, Supreme Court, Judgment of 7 February 2018, II PK 22/17. Cf also the Polish Supreme Court, Judgment of 15 March 

2016, II PK 17/15. 

146  Poland, Supreme Court, Judgment of 8 December 2015, I PK 339/14.
147  Poland, Supreme Court, Judgment of 14 March 2018, II PK 125/17.
148  Poland, Supreme Court, Judgment of 25 April 2018, I UK 499/17.

45

to it being manifestly ill-founded. Maybe this is the reason why the Supreme Court did not consider in 
this case the possibility of comparing the claimant’s remuneration with the remuneration of employees 
performing  work  of  equal  value  and  also  excluded  from  the  outset  the  possibility  of  comparing  the 
remuneration of employees for equal work but performed in other comparable enterprises. 

In Croatia as well very few equal pay cases are actually based on claims of sex discrimination;149 most 
case law concerns equal pay cases in public services and administration and involving complaints on the 
formal salary classification system and the actual tasks performed by the worker. Although the same 
guarantee of equal pay applies in public services as in private employment relationships, the formalistic 
approach of courts to the rigid system of job classification in public services renders almost impossible 
any unequal pay claim. This can be concluded indirectly from a series of cases involving claims of public 
servants that they should be paid more because they actually perform the tasks of higher skilled workers 
or work classified in another job category. Any formal difference in professional classifications will overturn 
comparability, as well as the fact that the public servant performs tasks of a higher paid job category 
without any formal decision of the public body, even where their superiors have given informal orders to 
perform those tasks.150

In  Austria,  the  Supreme  Court  (Oberster	 Gerichtshof,	 OGH)  held  that  in  jobs  that  allow  for  salary 
negotiations,  negotiating  skills  (or  lack  thereof)  were  not  an  admissible  justification  for  lower  pay  for 
female workers.151

3.1.7	 Job	evaluation	and	classification	systems

No job evaluation or classification system exists in Bulgaria (although initial discussions on this have 
started) and there are no examples of good practice guidance for job evaluation and classification systems 
in  a  number  of  other  countries  (Cyprus,  Czechia,  Denmark,  Estonia,  Greece,  Italy,  Luxembourg, 
North Macedonia, Romania and Slovenia). 

Methods  for  job  evaluation  and  classification  exist  in  Austria,  Belgium,  Finland,  France,  Germany, 
Iceland,  Lithuania,  the  Netherlands,  Poland,  Portugal,  Slovakia,  Spain  and  Sweden.  In  Iceland, 
Portugal  and  Slovakia,  it  is  specifically  stated  that  the  same  criteria  must  be  applied  for  men  and 
women, while in France, its Labour Code states that a job classification system (grading system) must be 
based on rules allowing for the implementation of the equal pay principle.

Job  evaluation  and  classification  systems  are  central  to  the  approach  to  equal  pay  in  Belgium.152 
Companies and joint sector committees have to assess whether their job evaluation systems and pay 
classification schemes are gender neutral and amend them where necessary.153 Moreover, the Institute 
for the Equality of Women and Men developed a checklist on gender neutrality in job evaluation and job 
classification in 2010, to be used by both private and public employers. 

149  See, for example, an unsuccessful equal pay claim alleging discrimination based on sex and age: Municipal Labour 

Court in Zagreb, Pr-1433/12, County Court in Zagreb, Gžr-2213/14 and Constitutional Court of the Republic of Croatia, 
U-III-1711/2015.

150  See, for example, Supreme Court of the Republic of Croatia, Revr-1952/09; Revr-196/10; Revr-201/11).
151  Austria, Supreme Court, Judgment of 20 May 1998, 9 ObA 350/97d.
152  The federal Ministry of Employment developed the EVA (EValuation Analytique/Analytische EVAluatie) project, aimed at 
providing the social partners with technical tools for job evaluation and a training module. After it was created in 2003, 
the Institute for the Equality of Women and Men drew up a ‘gender-neutral check-list for job evaluation and classification’. 
IEWM (2010) Checklist, gender neutrality in job evaluation and classification, available in English at: http://uniequalpay.org/
descargas/tools/checklist-neutrality-in-job-evaluation-and-classification.pdf. Classification des fonctions sexuellement 
neutre – mode d’emploi, 2006, available in French and Dutch at https://igvm-iefh.belgium.be/fr/publications/sekseneutrale_
functieclassificatie. A training programme and training manual were also prepared in 2000 and made available for a few years.

153  Collective Agreement No. 25 of 15 October 1975, modified by Collective Agreement No. 25bis of 19 December 2001 and 

finally, Collective Agreement No. 25ter of 9 July 2008.

46

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

In the Netherlands, an instrument was developed in 2001 in order to create gender-neutral job evaluation 
and classification systems: ‘de weegschaal gewogen’ (‘the weighted scale’).154 Subsequently, all systems 
that were acknowledged by the trade unions were tested for gender neutrality and have been found to 
be neutral. At present the debate mainly focuses on the incorrect use of job classification systems and on 
the granting of extra benefits outside of the systems.

In Sweden, there is no statutory requirement for the employer to apply a systematic or factor-based job 
evaluation system when deciding work that is to be regarded as of equal value to other work. Nevertheless, 
such systems are frequently applied. Normally, job classification is dealt with in collective agreements. 
In the public sector, social partners have jointly developed a job classification system called BESTA. It is 
used as a tool in the wage formation process at the sectoral and local level and forms the foundation for 
the jointly collected wage statistics. On the basis of BESTA, the partners have created a methodological 
support system to be used in pay audits, called BESTA vägen (best way).155 Outside the state sector, the 
IPE (internal position evaluation) and BAS (Befattnings-	och	arbetsvärderingssystem – position and work 
evaluation system) are two frequently used systems, but there are also many other systems in place.156 

In  other  countries,  job  and  evaluation  systems  exist,  but  only  in  the  public  sector  (Albania,  Croatia, 
Hungary, Latvia, Serbia, Turkey). In Croatia, an elaborate and complex system of job classification 
exists in the public sector, including numerous bylaws, such as regulations on job names and coefficients 
of  job  complexity,  as  well  as  regulations  on  job  classification  in  the  civil  service  in  general  or  within 
particular bodies in the public sector.157 In the civil service, for example, the standard parameters for job 
classification in all state bodies include the required professional knowledge, job complexity, degree of 
independence, level of cooperation with other bodies and relations with citizens, level of accountability 
and influence on decision-making in the organisation.158 The Hungarian Ministry of Interior, within the 
framework of a project funded by the EU Structural Funds in 2015, implemented a comprehensive job 
evaluation initiative in the public administration sphere and developed and implemented job evaluation and 
classification training courses.159 In Latvia, there are no company-level job evaluation and classification 
systems, except for the state officials and employees employed in state and municipal institutions. The 
State  and  Municipal  Institutions’  Remuneration  Law160  provides  a  table  qualifying  the  posts  according 
to grades and defining salary groups according to the grades. In Turkey, a job classification exists to 
determine  the  pay  of  civil  servants.  It  is  based  on  the  same  criteria  for  both  men  and  women.  Civil 
servants are classified according to the requirements of the job and relevant qualifications. 

In  Austria,  job  evaluation  or  classification  systems  are  bindingly  regulated  by  collective  agreements. 
Collective  agreements  contain  pay  grids  that  are  structured  by  qualification  levels  and  by  seniority 
and which lay out the minimum pay levels required for jobs belonging to the respective category. The 
employers  are  required  to  evaluate  the  classification  of  jobs  against  the  requirements  of  applicable 
collective agreements and indicate which career bracket is connected to an individual job. This decision 

154  Letter by the Secretary of State to Parliament (2011), No. 27099, No. 3 with annexes. Available at: https://zoek.officiele 

bekendmakingen.nl/kst-27099-3.html. 

155  Available (in Swedish only) at: https://www.arbetsgivarverket.se/besta/om-besta2/.
156  Kumlin, J. (2016) Sakligt motiverad eller koppling till kön? En analys av arbetsgivares arbete med att motverka osakliga 

löneskillnader mellan kvinnor och män. Report 2016:1, Equality Ombudsman (DO), Stockholm, p. 52. Available at:  
https://www.do.se/download/18.277ff225178022473141e34/1618941270910/rapport-sakligt-motiverad-eller-koppling-
till-kon.pdf. English summary available at: https://www.do.se/choose-language/english/reports/justified-pay-difference-or-
related-to-gender.

157  See, e.g. Regulation on job classification in the civil service (Uredba o klasifikaciji radnih mjesta u državnoj službi), NN 

Nos. 77/2007, 13/2008 and 81/2008. For an overview of the Croatian public administration characteristics and performance 
see Koprić, I. (2018) ‘Public administration characteristics and performance EU28: Croatia’, Croatia (country chapter), 
Luxembourg, Publications Office of the European Union.

158  Regulation on job classification in the civil service, Article 2.
159  See: Ministry of Interior: Új közszolgálati életpálya (ÁROP-2.2.17-2012-2013-000), https://bmprojektek.kormany.hu/uj-

kozszolgalati-eletpalya. 

160  Valsts un pašvaldību institūciju amatpersonu un darbinieku atlīdzības likums, Official Gazette No. 199, 18 December 2009, 
available in Latvian at: https://likumi.lv/ta/id/202273-valsts-un-pasvaldibu-instituciju-amatpersonu-un-darbinieku-
atlidzibas-likums.

47

 
can be challenged and corrected in individual court cases. The collective agreements, and the pay grids as 
one of their most important elements, are re-negotiated annually by the social partners and consequently 
are under regular observation and adaptation. 

Even in those countries where job evaluation systems have been introduced, this does not always have 
the  desired  effect.  For  example,  the  Lithuanian  expert  reported  that  the  job  evaluation  methodology 
adopted  as  a  recommendation  by  the  Tripartite  Council  of  the  Republic  of  Lithuania  has  had  little  or 
no impact on wage setting practices in the private and public sectors. In Poland, many theoretical and 
more  or  less  general  and  sophisticated  manuals  are  available,  with  instructions  on  how  to  undertake 
job evaluations using different methods and written by different experts. However, no examples of job 
classification systems being used in concrete situations can be identified as good practices.

In Malta, the National Commission for the Protection of Equality (NCPE) implemented a project named 
‘Prepare the Ground for Economic Independence’ (PGEI) which is co-funded by the Rights, Equality and 
Citizenship Programme 2014-2020, through which an Equal Pay Tool will be developed. The project was 
launched in 2018 and ran until August 2020.161

In  Norway,  the  Socialist  Party  proposed  the  adoption  of  an  ‘Icelandic  model’,  an  explicit  mandatory 
certification process for companies and institutions with more than 25 employees,162 to provide evidence 
that  they  pay  men  and  women  equally  for  the  same  job.  However,  it  did  not  have  enough  support  in 
Parliament. 

3.1.8	 Wage	transparency

There can only be awareness of pay discrimination when wage and job evaluation systems are public 
and  transparent.  The  European  network  of  legal  experts  in  gender  equality  and  non-discrimination 
published a comprehensive report on pay transparency in the EU,163 following the European Commission’s 
Recommendation of 7 March 2014 on strengthening the principle of equal pay between men and women 
through transparency,164 which sought to contribute to raising awareness regarding this issue.

Remaining	problems

Many problems persist regarding pay transparency. There is still a considerable number of states that 
do not provide for any legal measures whatsoever to ensure wage transparency and where this issue 
has  not  been  addressed  in  case  law  either  (Bulgaria,  Croatia,  Czechia,  Greece,  Hungary,  Ireland, 
Liechtenstein, Luxembourg, Macedonia, Malta, Montenegro, Romania, Serbia). 

In Latvia, workers’ representatives or trade unions formally have the right to require information on pay 
levels according to Article 11(1) of the Labour Law, however, there is no information on any case where 
such  a right would  have been used for the  purpose  of ensuring  the equal pay  principle.  The  Slovene 
expert has noted that both the lack of information on comparable jobs (as the concept of equal work 
and the term comparator are not defined) and on the salaries of co-workers makes it extremely difficult 
for potential victims of discrimination to start judicial proceedings. In Cyprus, the legislation does not 
provide for a wage transparency requirement in the sense of obliging employers to disclose pay rates 

161  https://ncpe.gov.mt/en/Pages/Projects_and_Specific_Initiatives/Prepare-the-Ground-for-Economic-Independence% 

E2%80%8B.aspx.

162  See report 2018:10, ‘Sertifisert likestilling, likelønnsstandarden på Island’ (Certified equity. Equal pay in Iceland) from the 

Institutt for samfunnsforskning (Institute for Social Research), available at: https://samfunnsforskning.brage.unit.no/
samfunnsforskning-xmlui/handle/11250/2503028. 

163  Veldman, A. (2017) Pay transparency in the EU, European Commission, available at: https://www.equalitylaw.eu/

downloads/4073-pay-transparency-in-the-eu-pdf-693-kb.

164  Commission Recommendation of 7 March 2014 on strengthening the principle of equal pay between men and 

women through transparency, OJ L 69, 8.03.2014, pp. 112-116, available at: http://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=celex%3A32014H0124.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

and the gender pay gap generally or to the interested party. In Slovakia, a mandatory indication of the 
minimum wage offered in job advertisements was introduced in May 2018. Importantly, in 2019, Slovakia 
introduced a change to employment law, which lowers the level of protection in relation to non-disclosure 
and maintaining confidentiality in employment relationships. As of 1 January 2019, employers may not 
oblige employees to keep their working conditions confidential – this includes their salary conditions. Any 
provisions requiring employees to keep their working conditions confidential are now invalid.

In Serbia, the Action Plan for the Implementation of the Strategy for Prevention and Protection against 
Discrimination for the period 2014-2018 requires further elaboration of the principle of equal pay for men 
and women and the introduction of sanctions for acting contrary to this principle,165 but does not require 
pay transparency. However, this Action Plan expired at the end of 2018. In Turkish law, rules on wage 
transparency are also lacking. Payments to employees and public officials are confidential. Therefore, it is 
difficult to detect any differences in wages. However, in a recent case, the Court of Cassation decided that 
sharing the amount of a pay rise with a colleague did not constitute a valid ground for the termination of 
the employment contract.166 

In Hungary, the possibility of excessive wage adjustment in the public sector is linked to the result of the 
unspecified evaluation of performance or quality of work done in the previous year. It is considered that 
the possibility of severe wage adjustment reduces the transparency of wages, and may also contribute 
to the statistically proven gender-based wage gap in the public sector, the more so given the fact that 
it is quite frequent in both the private and the public sector that the employer arbitrarily provides better 
wage conditions for some individuals or some groups of workers. For example, in one case, some groups 
of nurses working in different departments of the same hospital were entitled to receive hazard bonuses, 
while other groups of nurses were not, despite working under identical or very similar conditions.167 During 
the litigation, the employer stopped paying the hazard bonus to all its nurses, meaning that the claimants’ 
reference point ceased to exist, and their claim was dismissed. 

In  the  Netherlands,  the  requirement  of  wage  transparency  ensues  primarily  from  case  law.  In  case 
law,  reference  is  sometimes  made  to  one  of  the  standard  considerations  of  the  CJEU,  i.e.  that  real 
transparency, which makes effective verification possible, is ensured only when the principle of equal pay 
is applied to every element of the salaries of men and women. In this respect, the Supreme Court ruled 
on 12 April 2002 that a reversal of the burden of proof that work is of equal value is appropriate if a 
company applies a reward system that is characterised by a complete lack of transparency.168 According 
to the Supreme Court this was not the case in this particular matter. Employers must thus make clear 
in what way and on the basis of which standards they evaluate the work of their employees. The NIHR 
follows the same approach. An example is the opinion in which the NIHR ruled that the employer had not 
made clear which part of the extra pay a male worker received was related to labour shortage. The NIHR 
explicitly observed that the lack of a transparent salary system is the employer’s own risk.169

A number of experts have referred to trade secrets and protection of privacy/confidentiality as factors 
hampering transparency, such as in Austria, Belgium, Czechia, Estonia, Lithuania, North Macedonia, 
Poland,  Romania  and  Slovenia.  In  Belgium  there  is  no  transparency  as  to  the  remuneration  of 
managers  who  are  hired  by  public  economic  enterprises  under  employment  contracts,  although  the 
High  Administrative  Court  in  a  judgment  of  2  May  2016  found  that  the  protection  of  privacy  and  of 
the  company’s  economic  interests  could  not  serve  as  a  blanket  justification  for  refusing  to  make  the 
managers’ wages transparent at the Vlaamse Radio- en Televisieomroeporganisatie (VRT), the Flemish 

165  Serbia, Action Plan for the Implementation of the Strategy for Prevention and Protection against Discrimination, Official 

Gazette of the Republic of Serbia, No. 107/2014, 62.

166  Turkey, Court of Cassation 9th Division, 5 October 2017, 2016/24041, 2017/15069.
167  Hungary, Supreme Court (Legfelsőbb Bíróság) Judgment No. Mfv.II.10.514/2011; adopted as Decision in Principle No. as 

2424/2011. in Labour Law.

168  Netherlands, Supreme Court, JAR 2002/101, 12 April 2002.
169  Netherlands, College voor de Rechten van de Mens, Opinion 2012-142, 15 August 2012. See also Opinion 2009-76, 

6 August 2009.

49

public  radio  and  television  broadcasting  organisation.170  In  another  case  which  involved  the  European 
Trade  Union  Institute  a  female  researcher  complained  of  pay  discrimination  in  comparison  with  male 
colleagues. The Labour Court of Appeal in Brussels171 found that the employer’s pay system was opaque 
and simply referred to the CJEU’s decision in Case 109/88 Danfoss172 to conclude that there was gender 
discrimination. 

In Estonia, the Employment Contracts Act stipulates that the employer has no right to disclose information 
about wages calculated, paid or payable to the employee without the employee’s consent or without a 
legal basis. Pay secrecy could be a workplace policy that prohibits employees from discussing how much 
money  they  make.  The  Gender  Equality  and  Equal  Treatment  Commissioner  has  a  right  to  ask  for  all 
documents  about  working  conditions  and  wage  policy.  Also  pursuant  to  a  Supreme  Court  ruling,  it  is 
considered impossible to analyse gender pay differences because of the level of privacy protection. And 
even  though  public  sector  wages  are  public  and  are  published  on  the  Ministry  of  Finance  homepage, 
in some spheres of economic activity, wage data are classified (defence, Security Police Board and the 
Foreign Intelligence Agency).

Similarly, in North Macedonia employers use the protection of privacy argument to treat wage levels as 
confidential data and as a ground for including confidentiality clauses on wages in employment contracts. 
In  Czechia,  there  are  still  many  employment  contracts  which  require  employees  to  keep  silent  about 
their salary. This tool aims to help private and public entities to deal with the gender pay gap in their 
organisation, to establish transparent rules for remuneration, and to provide assistance in fixing the pay 
gap. 

In  Poland  as  well  there  is  an  ongoing  discussion  between  employers  emphasising  that  remuneration 
data are part of trade secrets and therefore subject to confidentiality clauses in employment contracts, 
with some courts following this reasoning. But such information is also considered protected under the 
personal  data  protection  act  and,  if  considered  as  a  personal  good,  employees  should  be  entitled  to 
disclose their salaries if they so wish; the obligation to preserve secrecy would then only apply to the 
employer. Yet there is general consensus that the prohibition to disclose information cannot extend to 
general remuneration tables, which may determine the range of remuneration, depending on the position, 
rank  or  qualifications.  There  are,  nevertheless,  legal  provisions  stipulating  directly  that  information 
about the remuneration of certain people is public.173 In the first case the Constitutional Court found the 
provisions of the Act of 3 March 2000 on remuneration of people in charge of legal entities owned at 
least 50 % by the State Treasury to be compliant with the Constitution with regard to the regulations 
stipulating the obligation to disclose the remuneration of these people, explaining that this information is 
not subject to protection in the same way as personal details or trade secrets.174 In the other ruling, the 
Supreme Court found that the fact that an employee disclosed to other employees information covered by 
the so-called salaries confidentiality clause, in order to prevent unfair treatment and wage-related forms 
of discrimination, cannot in any way serve as grounds for dissolution of his contract of employment.175 

The  Romanian  Labour  Code  stipulates  that  salaries  are  confidential  and  must  be  determined  by 
individual  direct  negotiations  between  employer  and  employee.  The  law  stipulates  only  one  exception 
–  trade  unions  or  employees’  representatives  may  access  information  regarding  salaries  in  order  to 
promote  the  employees’  interests  and  defend  their  rights,176  provided  two  cumulative  conditions  are 
met: the request for information is strictly in connection with the employees’ interests and the request is 

170  Belgium, Council of State, Dumortier, n°234.609 at www.raadvst-consetat.be.
171  Belgium, Labour Court of Appeal Brussels, Judgment of 19 October 2014, Chroniques de droit social/Sociaalrechtelijke 

Kronieken, 2005, p. 16 with J. Jacqmain’s case note.

172  CJEU, Judgment of 17 October 1989, Danfoss, Case 109/88, EU:C:1989:383. 
173  As examples, certain groups of public servants or people in decision-making positions, as provided for, e.g. in the Law of 

3 March 2000 on remuneration of persons in charge of some legal entities (unified text JoL 2018 Item 1252). 

174  Poland, Constitutional Court Judgment of 7 May 2001 (K 18/00).
175  Poland, Supreme Court, Judgment of 25 May 2011, II PK 304/10.
176  Romania, Labour Code, Article 163.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

made in the framework of the direct relationship between the trade union or employees’ representative 
and the employer.177 But this does not constitute a right of employees. In Lithuania as well individual 
wages belong to the sensitive data protected by statutory or contractual confidentiality clauses. A wage 
is usually set by individual agreement and not collectively by a collective agreement. Even in the public 
sector, with rigid regulation of wage policies, employers are given wider discretion (pay-rate brackets, e.g. 
from EUR 1 000 to EUR 1 400 or non-transparent system of performance reward) to decide individually 
on the exact level of remuneration for an individual employee. 

There also remain considerable differences between the states covered in this report regarding the extent 
to which wage transparency is considered a problem that needs to be addressed at all with a view to 
effectively combating pay discrimination. The Turkish expert has thus noted that pay differentials are not 
a serious problem in the public sector and are mostly problematic in the private, informal sector, as well 
as among public officials with an administrative law employment contract. In the formal sector, collective 
agreements are deemed transparent.

The  German  expert  has  expressed  serious  doubt  about  whether  pay  transparency  can  actually  bring 
about any change in court decisions. In a 2017 case of (alleged) pay discrimination, the Labour Court of 
Berlin and Brandenburg emphasised that Article 157 TFEU does not require equal pay for equal work but 
prohibits sex discrimination.178 The court could not identify any discrimination on the grounds of sex, but 
instead justified differentiations due to seniority and the different contract arrangements for freelancers 
and  permanent  employees.  Unequal  pay  for  the  same  or  equivalent  work  could  not  in  itself  indicate 
discrimination. As there was no discrimination, the court rejected the claimant’s request for information 
about  the  pay  structure  and  the  salaries  of  other  male  colleagues  performing  equivalent  work.  The 
defendant employer had confirmed that male colleagues doing equivalent work were paid a higher salary 
than  the  claimant  but  denied  discrimination.  The  pay  difference  was  explained  by  different  collective 
agreements for freelancers and permanent employees, on the one hand, and differences in seniority (the 
period of employment with the same employer) between the claimant and other (male) freelancers, on the 
other. During the public hearing, the judge explained that higher remuneration would mainly depend on 
negotiating skills, supposedly more pronounced in men, and contractual freedom, and that maternity and 
childcare periods would often lead to shorter periods of employment for women, less seniority and, thus, 
lower wages without any discrimination being involved. The State Labour Court of Berlin and Brandenburg 
confirmed the ruling of the first instance court and denied the applicant the shift of the burden of proof 
because she could not offer further evidence that the lower remuneration for the work of equal value was 
based upon sex/gender discrimination.179 The case reached the Federal Labour Court in June 2020. The 
Federal Labour Court clarified various aspects of the Pay Transparency Act, for example highlighting the 
need for a European-conform interpretation of the Act and its necessity for the proper implementation 
of Article 4 Recast Directive 2006/54/EC regarding equal pay for equal work and work of equal value. As 
such, the court considered the General Equal Treatment Act as insufficient. Accordingly, the meaning of 
‘employee’ had to be interpreted widely and had to correspond to the personal scope of the General Equal 
Treatment Act and the EU equality directives and include workers in employment-like circumstances. The 
claimant was thus entitled to receive information regarding the average gross income as well as specific 
components and criteria for the determination of pay.180 The issue has been returned to the higher labour 
court for further deliberation.

Implementation	of	the	transparency	measures	set	out	by	the	European	Commission’s	Recommendation	
of	7	March	2014	on	strengthening	the	principle	of	equal	pay	between	men	and	women.

Only a few states took specific action to follow up on the Commission’s Recommendation on transparency, 
including Croatia, Finland, Germany, Italy, Lithuania, Luxembourg, Poland and Spain, although in 

177  Romania, Labour Code, Article 163.
178  Germany, Labour Court of Berlin, Judgment of 1 February 2017, 56 Ca 5356/15.
179  Germany, State Labour Court of Berlin and Brandenburg, judgment of 5 February 2019, 16 Sa 983/18.
180  Federal Labour Court (BAG), judgment of 25 June 2020, 8 AZR 145/19.

51

a number of these this action has not yet been turned into law. In July 2015, the Croatian Government 
thus  adopted  the  Action  Plan  for  the  determination  and  regulation  of  the  salary  system,  with  the 
overarching aim of establishing equal pay for equal work and transparency in the salary systems in the 
public and the private sector, to be laid down in the Act on Salaries in the Public Sector in September 
2015. Wage transparency was to be enhanced through the introduction of wage categories, which should 
enable differentiation of work according to quality and increase work productivity, i.e. improve the relation 
between wages and productivity. Unfortunately, however, this initiative came to an end with the entry 
into office of the new Government in January 2016 and no other legislative steps have been announced 
since then. 

In Italy also, a draft delegated act was presented to Parliament in March 2015 and is under examination 
by the Commission for Labour, although it has still not become law. In Poland, an initiative to impose an 
obligation on companies to report on wage differences between men and women was announced in 2012, 
but no concrete legislative steps have been taken so far. 

In Estonia, some measures for pay transparency were planned by national strategies181 and the draft of 
the Act on Amendments to the Gender Equality Act and Associated Acts was prepared but not passed in 
parliament due to opposition from some women’s organisations, the equality body, and trade union and 
employers’ representatives.182 The draft act aimed to tackle the gender pay gap: it was intended to give 
more responsibilities and rights to the Labour Inspectorate and was targeted at public sector employers 
with 10 or more employees. However, a lack of common understanding and opposition to the draft law 
enabling effective monitoring of  the implementation  of equal pay  for  women  and  men  led  to  lengthy 
parliamentary debates (lasting six months) and ultimately to the failure of the draft act. Arguments against 
it related to the selection of the sector (why only the public sector), an increased administrative burden 
and the poor use of pre-existing capacities, such as gender equality bodies and agencies (questioning 
the necessity of establishing yet another institution). Meanwhile, the Ministry of Finance has issued a 
promise to reduce the gender pay gap during the period of 2021 to 2024 by encouraging the introduction 
of transparent and objective evaluation of work and pay systems, inter alia by providing a digital tool 
to facilitate and support gender equality planning.183 The project InWeGe (Income, Wealth and Gender, 
2019-2020) studied the wage and pension differences in Estonia and developed a web application for 
gender differences in income and wealth (wages and pensions) available on the website of the Statistics 
Estonia.184 In Malta, the National Commission for the Promotion of Equality in its input to the Equality Bill 
proposed strengthening protection in relation to pay and referred to the provisions of the Commission’s 
Recommendation.185

In Finland, pay audits had already been required by the Act on Equality since 2005 but the provision was 
amended in 2014. Pay audits are required for employers with a minimum of 30 employees as part of 
equality planning, the aim being to clarify that there are no unfounded pay differentials between women 
and men. The equality plan must involve an analysis of job classifications, pay and pay differentials by 
gender, and if there are clear differences the employer must analyse their reasons and grounds. The main 
pay components are to be taken into consideration and employers must conduct the audit in cooperation 
with the employees’ representative. 

181  Estonia, the Welfare Development Plan 2016-2023; National Action Plan 2016-2019, State Budget Strategy 2019-2022; 
Action plan of Estonia 2020 for 2018–2020 (Adopted by the Government of the Republic of Estonia on 26 April 2018), 
https://www.opengovpartnership.org/wp-content/uploads/2019/06/Estonia_Action-Plan_2018-2020_EST.pdf.
182  Estonia, Act on Amendments to the Gender Equality Act and Associated Acts, available at: https://www.riigikogu.ee/

tegevus/eelnoud/eelnou/920bb10b-1e71-48fa-896d-c8f2c473867a/Soolise%20võrdõiguslikkuse%20seaduse%20
muutmise%20ja%20sellega%20seonduvalt%20teiste%20seaduste%20muutmise%20seadus.

183  Ministry of Finance (2020), State Budget Strategy 2021–2024, p. 20, https://www.rahandusministeerium.ee/en/state-

budget-and-economy. 

184  https://palgad.stat.ee/en. The project InWeGe is carried out by the Gender Equality and Equal Treatment Commissioners 
office (EB) in a collaboration with Tartu University and Tallinn Technical University. For more information, see https://www.
youtube.com/watch?v=GkHs9FKrVzY.

185  NCPE (2015) ‘NCPE’s Input to the HREC and Equality Bills’, p. 6. https://meae.gov.mt/en/Public_Consultations/MSDC/

Documents/2015%20HREC%20Final/NCPE.pdf.

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European Union (TFEU) and Recast Directive 2006/54)

In  the  United  Kingdom,  the  provisions  referred  to  above  in  the  Equality  Act  2010  (Gender  Pay  Gap 
Information)  Regulations  2017  and  the  EqA  (Equal  Pay  Audits)  Regulations  2014  implement  the 
Recommendation to some extent. In respect of gender pay gap reporting the provisions fall short of the 
Recommendation in that they currently apply only to employers with at least 250 employees. In respect of 
pay audits, the provisions referred to above fall short of the Recommendation in that they will only apply 
to employers found liable for breaches of equal pay law at employment tribunal. The Recommendation 
has not been implemented in relation to pay information rights for employees or collective bargaining.

More recently, the Commission’s Recommendation provided the incentive for the Equality Ombudsman 
to  report  on  pay  transparency  in  2018.186  Its  report  contains  an  analysis  of  the  legal  prerequisites  of 
pay transparency and balancing requirements of the equal pay principle, particularly the right to privacy 
and  data  protection.187  The  Ministry  of  Social  Affairs  and  Health  nominated  a  tripartite  working  group 
(the Pay Transparency Working Group) to consider the proposals made by the Equality Ombudsman for 
amending the legal provision concerned (Section 6(b) of the Equality Act). Meanwhile it has become clear 
that  the  employees’  representatives  in  the  Working  Group188  support  an  amendment  of  the  provision 
on  pay  transparency  along  the  lines  proposed  by  the  Equality  Ombudsman,  whereas  the  employers’ 
representatives reject it. As the Government resigned before the final report was published, no political 
conclusions  were  drawn.  The  current  Government’s  programme  notes  that  pay  differentials  and  pay 
discrimination  are  to  be  combated  by  increasing  pay  transparency  by  means  of  legislation.  Provisions 
will  be  introduced  on  the  right  of  staff,  staff  representatives  and  individual  employees  to  access  pay 
information and to address pay discrimination more effectively. 

In Spain, to implement the Commission’s Recommendation, the 2019 legislation on work of equal value 
introduced a mechanism for wage transparency and established the right of employees to have access 
to the wage records of their firm through workers’ representatives. The Workers’ Statute now contains 
parameters  that  guide  gender-neutral  job  evaluation  and  classification  systems.  Moreover,  pay  audits 
have been introduced, to be carried out before an equality plan is drawn up, and a Registry of Enterprise 
Equality Plans has been set up. Royal Decree 902/2020, which was due to come into force in April 2021, 
defines the principle of wage transparency and establishes that firms and collective agreements must 
include and apply this principle. According to Article 3 of Royal Decree 902/2020, the principle of wage 
transparency will be applied at least through three mechanisms thereby regulated: wage registers, pay 
audits, and job evaluation and classification systems. 

Some  countries,  such  as  France,  did  not  consider  it  necessary  to  take  specific  action  following  the 
Recommendation,  arguing  that  most  of  the  recommendations  have  already  been  adopted  (see  next 
section).  Similarly,  in  Portugal  some  of  the  issues  covered  by  the  Commission  Recommendation  are 
already provided for in legislation, such as information on company wages disaggregated by sex being 
already available to employees. Furthermore, gender equality (including equal pay) is a mandatory topic 
of collective agreements and the Gender Equality Agency in the Field of Employment has a duty to check 
all collective agreements just after their publication in order to see whether they include discriminatory 
clauses. If this is the case, the Agency can present the case to the public attorney, who can take it to court 
in order to have these clauses declared null and void. This rule, introduced by the Labour Code of 2009, 
is in line with point 5 of the Recommendation. 

186  Ministry of Social Affairs and Health and Maarianvaara, J. (2018) Selvitys palkka-avoimudesta (Report on pay 
transparency), Ministry of Social Affairs and Health, available at: http://julkaisut.valtioneuvosto.fi/bitstream/
handle/10024/161103/R_41_18_Selvitys_palkka-avoimuudesta.pdf?sequence=1&isAllowed=y, Nousiainen, K., Palkka-
avoimuuden oikeudelliset edellytykset (Legal Prerequisites of Pay Transparency), in Ministry of Social Affairs and Health and 
Maarianvaara, Jukka, 2018, pp. 17-38.

187  Nousiainen, K. ‘Palkka-avoimuuden oikeudelliset edellytykset’ (‘Legal prerequisites of pay transparency’) in Ministry of 

Social Affairs and Health and Maarianvaara, J. (2018) Selvitys palkka-avoimuudesta (Report on pay transparency), pp. 17-39.

188  Ministry of Social Affairs and Health (2019) Palkka-avoimuustyöryhmän loppuraportti (The Final report of the pay 

transparency working group), Reports of the Ministry of Social Affairs and Health 2019:32, available at: http://julkaisut.
valtioneuvosto.fi/bitstream/handle/10024/161495/STM_rap_2019_32_Palkka-avoimuustyoryhman_loppuraportti.pdf.

53

Introduced	wage	transparency	rules	and	enforcement	mechanisms

However,  in  an  increasing  number  of  countries,  some  form  of  rule  or  duty  seeking  to  enhance  wage 
transparency has been introduced, including:

 –

Reporting	duties: The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017189 in the 
United Kingdom requires employers in the private, public and voluntary sectors with 250 or more 
employees  to  publish,  annually,  information  on  their  mean  and  median  gender  pay  gaps,  as  well 
as the number of men and women in each pay quartile. The 2017 German Pay Transparency Act 
restricts the reporting duty to businesses with more than 500 employees and there are no effective 
sanctions provided in the case of non-compliance. Following upon the Irish National Strategy for 
Women and Girls 2017 to 2020,190 on 26 June 2018, the Government approved the General Scheme 
of  the  Gender  Pay  Gap  Information  Bill,191  requiring  employers  to  publish  annually  information 
related to the pay of men and women so as to reveal any difference and the scale of that difference. 
It is proposed that for the first two years of the legislation, it shall apply to employers with over 
250 employees and then within three years the upper limit will become 150 employees. The new 
Minister for Equality has announced that he intends to amend the proposed legislation with stronger 
enforcement  mechanisms.  Income  reports  (Austria,  companies  with  150+  employees);  bi-annual 
m/w  report  relating  to  appointments,  training,  promotion,  pay,  etc.  (Italy,  companies  with  100+ 
employees); annual reports comparing the situation of men and women in the company (France, 
different duties for companies with 50+ and 250+ employees; see below for detailed explanation); 
‘pay  mapping’  duty  (Finland,  companies  with  30+  employees);  duty  of  gender-segregated  wage 
statistics (Denmark, but in 2016 the law was changed so as to no longer impose a duty on smaller 
companies  with  10+  full-time  employees,  but  only  on  companies  with  35+  full-time  employees 
and  with  at  least  10  men  and  10  women  with  comparable  jobs);  duty  for  employers  to  provide 
wage statistics each semester, disaggregated by sex, to the staff delegation (Luxembourg); duty to 
provide work councils and trade unions with anonymised data on the average wages of employees 
(except those in managerial positions) according to gender and professional groups, for companies 
with  more  than  20  employees  (Lithuania).  In  Montenegro,  Article  55  of  the  General  Collective 
Agreement requires that, once a year, the employer informs the trade union at an appropriate level 
of the total calculated gross and net salaries paid out, including contributions for mandatory social 
insurance and the amount of the average salary paid by the employer. This information applies to 
all employees, so there is no specified obligation in respect of diverse functions. Albanian Law sets 
an obligation on wage transparency for public institutions only, requiring every public institution to 
publish on its webpage in an easily understandable and accessible format information related to:  
‘(…) salaries of officials having the obligation to declare property and assets according to the law, 
salary  structures  for  other  employers,  (…).’192  According  to  the  Belgian  Gender  Pay  Gap  Act  (as 
amended in 2014), differences in pay and labour costs between men and women should be stated 
in companies’ annual reports and every two years, 50+ companies should carry out a comparative 
analysis of their wage structure, showing the rates for their female and male employees. If this shows 
that women earn less than men, the company must draw up an action plan. An employer may also 
appoint a works mediator, to which women can turn if they suspect discrimination. If there is a pay 
differential, the works mediator will try to find a compromise with the employer. In the Netherlands, 
companies are obliged, on the basis of Article 31d of the Works Councils Act, to submit data to works 
councils once a year about equal treatment of men and women and about the levels and the content 
of employee benefits (pay etc.) in the company. These data should be broken down by gender. The 
Croatian Bureau of Statistics publishes an annual publication ‘Men and women in Croatia’ (from 
2006 onwards), which contains a separate chapter with gender-disaggregated data on employment 

189  United Kingdom, Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, 6 April 2017. https://www.legislation.

gov.uk/uksi/2017/172/contents/made.

190  http://www.genderequality.ie/en/GE/Pages/Conferences. 
191  The Government published the Gender Pay Gap Bill 2019 in April 2019. https://www.oireachtas.ie/en/bills/bill/2019/30/.
192  Albania, Law No. 119/2014.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

and earnings. The publication is easily accessible online, on the Bureau’s website, and is published in 
Croatian and English. However, only employers who are legal entities are required to report annually 
to the Croatian Bureau of Statistics the average remuneration by category of employee or position, 
broken down by gender. In Norway, the duty of employers to report on matters of equal pay was 
significantly strengthened in January 2020. Public enterprises and private-sector enterprises with 
more than 50 employees are required to adopt a concrete methodology (‘activity duty’). The same 
applies to private undertakings with between 20 and 50 employees, if demanded by a social partner 
such as a union representative. Employers specified for activity duty as mentioned in Section 6, must 
report on both the current state of gender equality in the business and on the work they have done 
to fulfil the activity obligation. As of 1 January 2020, it is also an obligation for employers to develop 
wage surveys. The wage surveys are to be reported on for the first time in 2021.193

Pay	 information	 right:  In  Finland  the  employer  is  required  to  provide  the  victim  of  alleged  pay 
discrimination with ‘information on the grounds of his/her pay and other information that is necessary 
for  assessing  whether  there  has  been  discrimination’,  under  Section  10.3  of  the  Act  on  Equality. 
However, the employer is not obliged to disclose the information about a comparator who refuses 
to disclose their pay details. The comparator’s pay information may in such cases be required to be 
revealed through an intervention by the Equality Ombudsman. The new German law restricts the 
right to information to businesses with more than 200 employees, although the majority of women 
work in smaller enterprises. In Norway as well a similar right is provided under Section 32 of the 
GEADA, but is coupled with a duty of secrecy for the person receiving the information. In Greece, 
the Authority for the Protection of Personal Data (APPD) imposed a EUR 70 000 fine on a private 
firm for refusing to provide data to an employee on the comparative evaluation of its employees, 
which he had requested in order to be able to exercise his employment rights. Moreover, in a decision 
concerning the application process for a work post for disabled people, the APPD allowed sensitive 
data  about  the  successful  candidate  (disability  and  unemployment  status)  to  be  provided  to  the 
unsuccessful candidate, on the basis that the latter was considered to have a legitimate interest. It 
is likely that the APPD would take a similar position in an equal pay case. In Slovenia, the employer 
can  refuse  to  give  such  information  on  the  ground  of  an  employee  refusing  to  give  consent.  In 
Iceland, the law stipulates a right for employees to disclose their wages if they choose to do so, 
which is not deemed to be very effective, given the unlikelihood that men will disclose their higher 
wages to female colleagues.

Recording	duty: In Portugal, companies must keep sex-segregated records of recruitment forms and 
procedures for a minimum period of five years. These records must also include information that 
allows for the investigation of wage discrimination. Spanish Royal Decree 6/2019, of 1 March 2019, 
which came into force immediately after it was passed194 establishes an obligation for employers to 
keep a record of the average remuneration in the company, in relation to professional groups or jobs 
of equal value. Workers’ representatives have the right to receive annual reports of this record. It also 
establishes the presumption that there is a prima facie case of discrimination when, in companies 
with more than 50 workers, the average remuneration of workers of one sex is at least 25 % higher 
than the average remuneration of workers of the other sex. According to Royal Decree 902/2020, 
remuneration  records  are  mandatory  for  all  companies  and  the  Royal  Decree  establishes  precise 
instructions  on  the  information  they  must  contain  and  how  to  compute  them.  The  remuneration 
record should include salaries, salary supplements and extra-salary benefits.

 –

 –

 –

Publication	of	salaries	of	certain	persons (Poland) also pursuant to staff regulations (Belgium). 

193 

If the company already had the numbers ready in 2020, the numbers could also be reported on in 2020. See the Equality 
Ombud’s website: https://ldo.no/en/jobbe-for-likestilling/i-arbeidslivet/Aktivitets-og-redegjorelsesplikten/ (only in 
Norwegian).

194  Spain, Royal Decree 6/2019, of 1 March 2019, www.boe.es/buscar/act.php?id=BOE-A-2019-3244.

55

 –

 –

 –

Duty	for	employers to	establish	a	remuneration	system: In Lithuania, legislation entered into force in 
2017 which established such a duty for companies with more than 50 employees and a requirement 
to make it available to employees. The system must specify categories of employees according to 
their position and qualification, the remuneration for each of them and the level of the base rate 
wage,  the  grounds  and  procedure  for  granting  additional  payments,  and  the  procedure  of  wage 
indexing. 

Duty	for	employers	to	establish	an	equal	pay	action	plan:	In Sweden, this duty includes a survey of 
provisions and practices regarding pay and other terms of employment that are used at the employer’s 
establishment and pay differences between men and women. In Lithuania, companies with more 
than 50 employees have to adopt an internal policy on equal opportunities, which must be discussed 
in their works council. If the Portuguese Gender Equality Agency in the Field of Employment (CITE) 
detects wage inequalities in a company, it notifies the employer to present an ‘evaluation plan of the 
wage differences in the company’ that is intended either to justify those differences or to eliminate 
those with no objective justification, and that will be put in place for a period of 12 months.

Duty	 to	 establish	 a	 sound	 job	 evaluation	 system	 (Netherlands,  Portugal).  In  Austria,  sectoral 
collective agreements in the private sector are required to contain gender-neutral pay schemes that 
structure  minimum  pay  levels  according  to  material  and  temporal  qualification  levels.  Collective 
agreements are accessible to the public in a database maintained by the Trade Union Federation, 
which is regularly updated as soon as pay rises come into effect.195 In rare cases, where a job falls 
into an area not regulated by a collective agreement, adequate pay levels can be inferred by looking 
at  the  best  comparable  sectoral  pay  schemes.  However,  a  higher  rate  of  pay  can  be  negotiated 
at any time. The Belgian Collective Labour Agreement No. 25 on equal pay for male and female 
employees obliges all sectors and individual enterprises to assess and, if necessary, correct their job 
evaluation and classification systems to ensure gender neutrality as a condition of equal pay. The 
Collective Agreement modified on 9 July 2008 provides that discrimination between men and women 
must be excluded from all conditions of remuneration. The communication and control of revised 
job evaluation and classification systems by the federal service in charge of collective agreements 
is one positive outcome of the law (between 1 July 2013 and 30 November 2014, more than 150 
collective agreements were checked and subsequently some of them were corrected or completely 
modified).196  The  Institute  for  the  Equality  of  Women  and  Men  also  issued  a  methodological 
instrument, the gender neutral checklist for job assessment and classification, which subsequently 
gained legal recognition.197 The checklist is one of the elements taken into consideration in the check 
by the federal service. In two Dutch collective agreements the employer committed itself to carrying 
out an investigation into equal pay in its company. The results of one of these investigations have 
already been published.198 The outcome is that pay differences do indeed exist within the company 
and that the main cause appears to be the under-representation of women in higher positions. The 
company  has  announced  that  it  will  discuss  with  the  works  council  and  the  trade  unions  how  to 
redress this situation.

 –

Investigation	powers	of	specific	inspectors	or	equality	bodies	and	possibility	of	sanctions: In Italy, the 
local Labour Inspectorate may obtain gender-differentiated data at the workplace as regards hiring, 
vocational  training  and  career  opportunities.  In  Portugal,  the  workers  and  union  representatives 
also have the right to ask the CITE for advice on alleged gender pay discriminatory practices inside 
the  company;  if  the  CITE  concludes  that  there  is  wage  discrimination  on  the  ground  of  sex,  the 
employer is compelled to eradicate it and may be subjected to a fine. In Cyprus, a specific inspector 

195  https://www.kollektivvertrag.at/cms/KV/KV_0/home. 
196  Deloose, S. (2018) La loi sur l’écart salarial, effectivité et conformité au droit européen (The law on the pay gap – effectiveness 

and conformity with EU law), Final essay for the L.L.M. at the Université libre de Bruxelles, p. 18.

197  Available in French and Dutch at: www.igvm-iefh.belgium.be.
198  Aegon (2019), Vrouwen bij Aegon gelijk beloond (Equal pay for women and men at Aegon), 11 February 2019, available at: 

https://nieuws.aegon.nl/gelijke-beloning/.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

 –

 –

 –

 –

 –

is appointed to also ensure the full and effective application of gender equality law, and to whom all 
kinds of information must be disclosed upon request.

Monitoring	duty: The Swedish Mediation Office – a public authority – monitors wage developments 
in  the  Swedish  labour  market  including  equal  pay  developments,  but  it  must  be  stressed  that  in 
Sweden, pay – and pay structures – is for the social partners to decide through collective bargaining. 
Every year, the Portuguese Ministry of Employment and Social Affairs publishes detailed statistical 
data on the salary gap between men and women, at general and sectoral levels, and statistical data 
by company, profession and qualification level, based upon the annual balance sheet provided by 
companies. In Belgium, monitoring annual reports and comparative analysis is part of the tasks of 
company auditors within their role of annual accounts monitoring. Despite instructions given by the 
Institute of Company Auditors,199 currently, this obligation is not really effective as auditors are not 
systematically checking the accuracy of figures provided. Moreover, the reports are only accessible 
internally to the works councils, limiting their use in legal cases, for example. The labour inspectors 
also  have  a  role  in  checking  information  provided  by  enterprises,  but  due  to  their  limited  human 
resources, this is barely carried out. What is more, all data mentioned in the reports are confidential. 
Finally, the fact that no mediator has been appointed so far is a signal that although the law provides 
a number of mechanisms to ensure that equal pay in companies is real, it is not really effective. 
According to the Danish Equal Pay Act, the Government is obliged to present a national statement 
on the status and development of the gender pay gap every three years. This monitoring report is 
based on an extensive review as well as a large dataset and is made public. 

Unenforceability	of	confidentiality	clauses	in	labour	contracts (Northern Ireland).

Duty	to	produce	salary	guides	in	the	public	sector	(Estonia, Slovenia). The Estonian Civil Service Act 
stipulates that the salary guide of the authority must be disclosed on the web page of the authority. 
A  salary  guide  is  a  procedure  for  the  determination  and  payment  of  salaries  and  prescribes  the 
basic salary or the basic salary range for the position, the conditions and procedure for payment of 
the variable salary, additional remuneration and benefits provided by law and the time and manner 
of the payment of the salary. A list of institutions and authorities (heads of authorities, ministers 
and high-level representatives) is provided which should establish salary guides. The procedure for 
drafting the salary guide and determination of the salary components for other public bodies should 
be specified by a Government regulation.200 

Protection against retaliation: In Portugal, the dismissal or the application of disciplinary measures 
against a worker up to one year after they ask the CITE for the advice indicated above is presumed 
unlawful.

Pay	audit	requirements: Under Section 6(b) of the Finnish Act on Equality, employers of more than 
30 employees are under a positive obligation to conduct regular pay audits (pay mapping). If pay 
differentials are found, the employer must enquire into the causes and reasons for these differentials. 
Pay  audits  in  Germany  are  not  mandatory.  In  the  United  Kingdom,  the  Equality  Act  allows  the 
adoption of regulations requiring large employers (250+) to carry out and publish equal pay audits. 
To  some  extent  Sweden  can  be  said  to  have  implemented  the  Commission’s  Recommendation 
by  requiring  the  employer  to  carry  out  yearly  pay  audits.  The  audit  must  comprise  a  survey  and 
analysis of wages and wage differences, referring in particular to the comparison between: women 
and men performing work that is to be regarded as equal; groups of employees performing work 
considered to be dominated by women and groups not dominated by women performing work of 
equal  value;  employees  performing  work  considered  to  be  dominated  by  women  and  a  group  of 

Institut des réviseurs d’entreprise, Communication 2014/10, 29 October 2014.

199 
200  Estonia, Regulation of the Government of the Republic No. 76 of 16 March 2013 on administration of the state personnel 
and payroll database remuneration levels (Riigi personali- ja palgaarvestuse andmekogusse andmete esitamise ja arvestuse 
toimingute teostamise kord. Vabariigi Valitsuse määrus nr 76), 16 May 2015.

57

employees performing work not considered to be female-dominated but better paid despite the work 
requirements being deemed to be lower. This information is not to be sent or reported anywhere, but 
it must be sent to the Equality Ombudsman upon request. A trade union to whom the employer is 
bound by collective agreement also has the right to obtain the information needed to collaborate on 
the monitoring of wage statistics for equality, and the survey and yearly analysis of pay levels. To the 
extent that this information is related to an individual employee, it is subject to rules on professional 
secrecy. So far, Iceland has introduced the most developed pay audit system, which is explained in 
more detail below. In Spain, pay audits were introduced in the Law on Effective Equality by Royal 
Decree 6/2019. Royal Decree 902/2020 establishes that companies that are obliged to prepare an 
equality plan201 must conduct an equal pay audit before the equality plan is drawn up. The Royal 
Decree regulates the content of the pay audit (diagnosis with job evaluations and action plan for the 
correction of possible pay inequalities).

 –

Penalties: In Great Britain, no civil penalties for non-compliance with the reporting duty are currently 
proposed, although this is to remain under review,202 but failure to report is ‘an unlawful act’ and the 
Equality and Human Rights Commission can take enforcement action It may open an investigation 
if  it  suspects  a  considerable  pay  gap  is  being  hidden  by  employers.  Reputational  risks  are  also 
a  consideration  if  employers  fail  to  comply  with  the  regulations:  information  is  publicly  available 
online203 and often attracts media attention. Furthermore, any term of a contract which prohibits 
or restricts a person from making a ‘relevant pay disclosure’ to anyone is unenforceable. A tribunal 
must (subject to certain exceptions) require an employer who loses an equal pay claim to carry out 
an  equal  pay  audit.  Regarding  the  Gender  Pay  Gap  Information  Bill  2019  introduced  in  Ireland, 
the Human Rights and Equality Commission may make application to court if there is an alleged 
breach of the proposed legislation. There will also be additional enforcement powers and access to 
the Workplace Relations Commission if an employee considers that there has been a breach of the 
legislation.

On 1 June 2017, the Icelandic Parliament passed, by a vast majority, a law (Law No. 56/2017, which 
came into force on 1 January 2018) requiring companies and institutions employing 25 or more workers 
to obtain annual equal pay certification of their equal pay systems and the implementation thereof, on 
the basis of the requirements of a management requirement standard204 to prove that they offer equal 
pay for work of equal value, regardless of gender.205 The Equal Pay Standard ÍST 85 (the Standard) is the 
first to be deliberately developed according to international ISO standards, allowing it to be translated 
and adopted in other countries. The Standard is applicable to all companies regardless of their size, field 
of activity and the gender composition of their staff. It describes the process that companies and public 
institutions can follow in order to ensure equal pay within their organisation and is aimed at implementing 
effective and professional methods for making pay decisions, their effective review and improvement. The 
Standard ensures professional working methods in order to prevent direct or indirect discrimination and 
can be purchased at Icelandic Standards.206 

In order to obtain qualification, companies and institutions need to implement an equal pay management 
system following guidelines in the Equal Pay Standard. An accredited auditor will conduct an audit, and 
if the company or institution fulfils the requirements, it will receive a certification that must be renewed 
every three years. Equal pay certification under the standard is designed to confirm that decisions on pay 
are based only on relevant considerations. The Standard does not entail a requirement that individuals 
receive exactly the same wages for the same work or comparable work, as employers have discretion to 

201  All firms with more than 150 employees since March 2020, firms with 100-150 employees from March 2021 and firms with 

50-100 employees as of March 2022.

202  Government Equalities Office (2016), Mandatory Gender Pay Gap Reporting: Government Consultation on Draft Regulations, 

at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504398/GPG_consultation_v8.pdf.

203  See https://gender-pay-gap.service.gov.uk/Viewing/search-results.
204  The Standard ÍST 85 Equal Pay Management System – requirements and guidance.
205  https://www.government.is/news/article/2018/01/30/Questions-and-Answers-on-equal-pay-certification/.
206  http://stadlarad.is.

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European Union (TFEU) and Recast Directive 2006/54)

take into consideration individual factors applying to groups and particular personal skills when deciding 
wages. Nevertheless, it does make the inflexible demand that decisions on wages are based on relevant 
considerations, such as individuals’ qualifications, experience, responsibilities or job performance, criteria 
which do not involve gender discrimination of any type, direct or indirect. The Standard states that the 
normal procedure is that information on employees’ wages is presented in the form of statistics in such 
a way that they cannot be traced to the individuals involved. 

The organisations of the social partners are commissioned to monitor compliance to ensure that workplaces 
acquire equal pay certification and that it is renewed every three years. In cases where a workplace either 
has not acquired equal pay certification or has failed to renew it by the deadline, the organisations of 
the social partners will be able to report it to the Centre for Gender Equality. The Centre will maintain a 
register of companies and institutions that have acquired certification or confirmation and will display it 
in an accessible manner on the Centre’s website. The Centre can also impose on the workplace a formal 
demand to rectify the situation by a certain deadline. Rectification measures can involve, for example, the 
provision of information and release of materials or the drawing up of a scheduled plan of action on how 
the workplace intends to meet the requirements of the Equal Pay Standard. If the workplace fails to act 
on instructions of this type, the Centre for Gender Equality is authorised to impose per	diem fines. Appeals 
can be referred to the Minister of Social Affairs and Equality against a decision to impose per	diem	fines. 
The minister will also order assessments every two years of the results of certification and confirmation 
of the equal pay systems of companies and institutions under the act and will issue regulations on the 
execution and structure of these assessments. 

In Germany, a first evaluation of the Pay Transparency Act was published in 2019, showing that some 
issues remain. For instance, many employers seem not to have applied the rules, evaluated their systems 
or changed structures. Reporting duties are restricted to companies with more than 500 employees and 
there are no effective sanctions in the case of non-compliance, while pay audits remain non-compulsory.207 
Employees mostly do not exercise or are unaware of their rights to pay transparency. Moreover, the German 
expert identified the fact that there are no sanctions for infringements or enforcement mechanisms, such 
as an effective shift of the burden of proof and the ability to bring a class action, as a major problem. 

In France, the new general labour legislation208 and the Law of 29 March 2018 now detail new obligations 
for private companies209 with regard to collecting the statistics necessary to monitor the participation of 
women and men in employment. However, a historical view shows that, in practice, in the private sector, 
these more recent legislative developments seem to limit the scope of these obligations in three ways. 

Firstly, there is less visibility of the data presenting for each job category the situation of women and men 
in hiring, training, promotion, in terms of qualifications, grade, working conditions and pay, as these are 
now contained in a more general database, and also the scope of the negotiations on equality at work is 
no longer separate from other issues relating to working conditions. Secondly, the Macron executive order 
on the Labour Law reform of 2017210 also concerns the general obligation of employers to negotiate on 
equality between women and men, which is still mandatory at least every four years when there is a 
group of union representatives.211 However, the frequency of this negotiation can be set at a minimum of 
every four years by an agreement at company level. It is only if there is no agreement on the timetable 

207  Pay audits are voluntary operational audit procedures for companies with at least 500 employees, through which they may 
regularly review their remuneration regulations and the various remuneration components paid as well as their application 
for compliance with the equal pay requirement within the meaning of the Pay Transparency Act.

208  France, Article L 2323-17 abolished by the new labour law reform, Executive Order (Ordonnance) n°2017-1386 du 22 

September 2017, Article 1.

209  See Travail, genre et sociétés 2017/1 No. 37 pp. 129-171. Des lois à la négociation, quoi de neuf pour l’égalité 

professionnelles, https://www.cairn.info/revue-travail-genre-et-societes-2017-1.html.

210  France, Executive Order No. 2017-1385 of 22 September 2017 on strengthening collective negotiations (Ordonnance n° 

2017-1385 du 22 septembre 2017 relative au renforcement de la négociation collective).

211  A ‘Section syndicale’, Article L 2242-1, Labour Code, Executive order No. 2017-1385 of 22 September 2017, Article 7, available 

at: https://www.legifrance.gouv.fr/loda/article_lc/LEGIARTI000035608867/2999-01-01/#LEGIARTI000035608867.

59

that the negotiation is held every year. The scope of the negotiation must include the gender pay gap.212 
The financial penalty in the absence of negotiation on equality reflects its binding nature.213 Thirdly, the 
recent decree on indicators to close the gender pay gap and monitor the promotion of women and men 
with  specific  actions  might  not  be  sufficiently  effective  to  detect  disparities  and  correct  them.214  The 
decree was adopted to implement Law No. 2018-771 of 5 September 2018215 which provides that, in 
companies with more than 50 employees, the employer must publish indicators each year relating to the 
pay gap between women and men and the actions implemented to eliminate it. The decree also defines 
the methodology used to establish the indicators (L.1142-8 of the Labour Code).

According  to  the  decree,  the  following  indicators  for  companies  with  more  than  250  employees 
(Article D. 1142-2 Labour Code) must be published:

1)  The gender pay gap between women and men, calculated in reference to the average pay of women 

compared to the average pay of men, by age cohorts and categories of equivalent jobs. 

2)  The rate of disparities in individual pay rises that do not reflect promotions between women and 

men.

3)  The rate of disparities in promotions between women and men.
4)  The percentage of employees who benefited from a pay rise during the year of their return from 

maternity leave if there were increases in pay during their leave period.

5)  The number of workers of the under-represented sex among the ten employees who earn the highest 

wages in the firm.

For companies of between 50 and 250 employees, the same indicators are to be published except one: 
there  is  no  obligation  to  publish  the  rate  of  disparities  in  promotion  between  women  and  men.  It  is 
problematic to think that the differences in the number of promotions for women and men should not be 
monitored in these medium-sized companies.216 The French expert considers it also regrettable that no 
indicators are required for smaller companies (under 50 employees), since the majority of the job pool 
is within these companies. Under the new decree, the results of the company in view of the indicators 
are published each year on the company’s website, or in the absence of such a website, the indicators 
are circulated to employees by other means. In the public sector, similar pay gap indicators will soon be 
required with the new reform of the civil service adopted in the summer of 2019.217

In  France,  there  are  new  measures  to  correct  the  gender  pay  gap  detected  by  the  new  indicators  
(Article L 1142-9 Labour code). First, there is a duty to inform the works councils and engage in negotiations 
on professional equality. In companies where the results in points obtained with regard to the indicators 
are lower than 75, the collective bargaining negotiations on equality will focus on adequate and relevant 
measures  to  correct  and,  eventually,  programme  annual  or  pluri-annual  financial  measures  to  close 
the gender pay gap (Article D. 1142-6). These indicators can be made available to works councils. The 
results are presented by socio-professional categories, levels or hierarchical pay grades or other rankings 
according to jobs. If the indicators cannot be  calculated,  the employer must  explain  these  challenges. 
In  the  event  that  no  agreement  is  found  on  measures  with  employee  representatives,  the  employer 
takes its own measures after consultation with the works council. This decision is monitored by the public 
authorities. There are also financial sanctions if the indicators reflect a certain level of disparity (L. 1142-10). 
In companies of at least 50 employees, if the total number of points linked to the indicators is under 75, the 

212  France, Article L2242-1, Labour Code.
213  France, Article L2242-8, Labour Code.
214  France, Decree No. 2019-15, 8 January 2019 on closing the gender pay gap and combating sexual violence and sexism 

(Décret n° 2019-15 du 8 janvier 2019), available at: https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT 
000037964765&categorieLien=id. 

215  France, Chapter IV, Article 104-107, available at: https://www.legifrance.gouv.fr/eli/loi/2018/9/5/MTRX1808061L/jo/texte.
216  See European Equality Law Network, Flash Report (2019), ‘New decree on gender pay gap in France’, available at: https://

www.equalitylaw.eu/downloads/4859-france-new-decree-on-gender-pay-gap-in-france-pdf-106-kb. 

217  France, Act No. 2019-828 of 6 August 2019 on the transformation of the civil service (Loi n° 2019-828 du 6 août 2019 de 

transformation de la fonction publique). 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

company has three years to comply and limit the pay disparities. If the company achieves a result of 75 
points before the three years have elapsed then a new time limit of three years is awarded to correct the 
disparities which starts the year the 75 points result is published (Article D. 1142-8).218 

The Irish Government approved the General Scheme of the Gender Pay Gap Information Bill on 26 June 
2018.219  The  proposed  legislation  will  be  cited  as  the  Gender  Pay  Gap  Information  Act  2018.  The 
Employment  Equality  Act  1998  will  be  amended  by  the  insertion  of  a  number  of  sections  to  include: 
‘Gender	Pay	Gap	Information’. There is a legislative proposal on equal pay for women and men in the 
Netherlands, which was submitted to Parliament on 7 March 2019220 The main elements of this are the 
following:

 –

 –

 –

 –

Reversal of the burden of proof. Employers with 50 or more employees should apply for a certificate 
which shows that they apply the standard for equal pay. If they do not have such a certificate and a 
person states that he or she is not paid equally, the assumption is that this is indeed the case. The 
employer may refute this assumption.
Obligation  to  provide  information  in  the  annual  report  by  employers  with  50  or  more  employees 
about differences in pay between employees who carry out work of (almost) equal value. If unequal 
pay exists, this must be reported in the annual report together with information on the way in which 
these differences will be eliminated. 
The  Labour  Inspectorate  will  be  given  the  tasks  of  monitoring  the  application  of  the  law  and  of 
imposing fines in cases of non-compliance.
Employees of employers with 50 or more employees will get the right to ask for information about 
the salary of colleagues who do the same work or work of (almost) equal value.

The proposal was debated in Parliament for the first time on 2 February 2021. The conservative party 
CDA  and  (neo)-liberal  party  VVD  oppose  the  proposal,  because  in  their  view  it  creates  too  heavy  an 
administrative burden for employers. More left-wing political parties are in favour, as they believe there 
is no other way to reduce the gender pay gap. As there will be parliamentary elections in March 2021, it 
is hard to predict whether or not the proposal will be adopted in the end.

3.1.9	 Other	initiatives	to	enhance	transparency	and	to	close	the	gender	pay	gap

In a number of countries, some more practical, supporting tools have been developed to assist employers in 
addressing the gender pay gap within their organisation. In the Netherlands, a website, www.gelijkloon.nl 
(part of www.wageindicator.org), subsidised by the Dutch Government, provides substantive information 
about (equal) pay and enabling the comparison of wages. In addition, the NIHR has developed the equal 
pay Quickscan (see www.wervingenselectiegids.nl). If pay discrimination is suspected, a worker can turn to 
the NIHR, who can actively investigate and obtain necessary pay data from the employer. Furthermore, in 
September 2020, the Foundation for Labour (Stichting	van	de	Arbeid) published an update of its checklist 
for equal pay, which dates from 2001. This checklist contains various tools which are targeted at four 

218  This encourages companies to introduce measures to comply, postponing the sanction if the pay disparity is reduced 

within the three years. However, it can result in companies reducing their pay disparity once every three years to postpone 
any possible sanction. The decree describes the procedure to sanction the company if the three-year time limit is not 
respected: an agent from the labour inspectorate sends a report to the regional director (Article D. 1142-9.). The director 
informs the company it is considering a financial sanction within the next two months after the report and the director 
can take into account justifications for the non-compliance and correction of the pay disparity (economic hardship, 
company restructuring or merger or bankruptcy (Article D. 1142-11). The director has two choices: impose a sanction of 
the equivalent of 1 % of the earnings and company profits from the past calendar year based on revenues from activities 
(social security contribution base Article D. 1142-13) or award extra time to comply within a maximum of one year. Public 
authorities enforce the rules, which avoids the constraints of judicial adjudication. However, in view of the possible 
exemptions to enforcement in case of economic hardship in the company, the sanctions might be less rigorously enforced 
and this would undercut the binding and dissuasive nature of the publication of the indicators and their effect.

219  The Government published the Gender Pay Gap Bill 2019 in April 2019: https://www.oireachtas.ie/en/bills/bill/2019/30/.
220  Summary of a legislative proposal on equal pay for men and women: https://www.tweedekamer.nl/kamerstukken/

wetsvoorstellen/detail?cfg=wetsvoorsteldetails&qry=wetsvoorstel%3A35157.

61

different groups: (1) large and medium-sized companies with a human resources department, (2) small 
companies, (3) works councils and employee representatives and (4) individual employees. These tools 
can help to ensure equal pay for men and women within companies.221 

In Poland, in May 2017, a free software application to measure the pay gap was made available on the 
website of what is now called the Ministry of Family, Labour and Social Policy (MRPiPS).222 The ministry 
encourages employers to use the tool, explaining that providing equal pay for equal jobs or jobs of equal 
value is not only an obligation on employers, but also brings many advantages. The MRPiPS proposes 
estimating the so-called ‘corrected pay gap’, where employees’ wages are compared considering features 
such as sex, age, education, the position occupied, working time or the length of service. Although the 
Polish expert considers the introduction of this tool, which is free of charge, to be a positive step, its 
voluntary  nature  is  criticised.  It  is  also  considered  that  it  should  be  mandatory  to  publish  monitoring 
results and to make those available to a wide audience. 

The Luxembourg Ministry for Gender Equality offers an online tool to companies which want to analyse 
their situation regarding equal pay. The Logib-Lux223 is a calculating instrument based on Excel, which 
allows  identification  of  the  causes  of  disparities  regarding  remuneration  between  men  and  women  in 
a  company.  After  submitting  the  relevant  data,  the  company  receives  a  report  on  the  remuneration 
structures within the company in which the causes of any pay gap are identified. The report establishes if 
the gender pay gap is justified by objective factors or if it indicates indirect discrimination based on sex. 
It also indicates methods for improving pay equality. It must be noted that companies are not obliged to 
communicate the results of the report to MEGA. If they used Logib-Lux in the procedure on positive action, 
they must only document that they used it to check equal pay. 

The  German government has also offered Logib-D as a management tool to help employers identify 
if there is a pay gap between their male and female employees.224 There were strong indications that 
another tool (eg-check)225 was better suited to detect pay discrimination on the grounds of sex/gender 
and to design pay structures and evaluation systems free of sex/gender discrimination. The tool Logib-D 
was designed to detect only the ‘adjusted’ wage gap, ignoring structural and indirect discrimination of 
women  in  working  life.  In  2019,  the  Federal  Ministry  for  Family,  Senior  Citizens,  Women  and  Youth  is 
presenting  a  newly  developed  tool,  the  Evaluierung	 von	 Arbeitsbewertungsverfahren  (EVA)  list  for  the 
evaluation of job assessment procedures and sample analyses.226 

In Czechia, Logib	has been implemented by the Ministry of Social Affairs as a pilot project in 2020.227 
Moreover, the Ministry of Labour and Social Affairs provides for a publicly accessible pay calculator.228 

In Austria, a ‘wage calculator’ (Gehaltsrechner) is being used since 2017 upon an initiative by the Ministry 
for  Women.  This  online  tool  lets  users  calculate  average  wages  and  salaries  according  to  profession, 
sector or region and can thus provide an instrument for works councils, unions and individuals in their 
campaigns for pay equality. 

221  Netherlands, Stichting van de Arbeid (Foundation for Labour) (2020), ‘Je verdiende loon! Handreiking gelijke beloning 

mannen en vrouwen’ (The salary you deserve! Guidance on equal pay for men and women), 21 September 2020, available 
at: https://www.stvda.nl/nl/thema/arbeid-zorg/gelijke-beloning.

222  https://www.gov.pl/web/rodzina/aplikacja-do-mierzenia-nierownosci-plac See also: https://www.infor.pl/prawo/nowosci-
prawne/757047,Ministerstwo-Rodziny-Pracy-i-Polityki-Spolecznej-stworzylo-mobilne-narzedzie-do-mierzenia-luk-
placowych.html. 

223  http://mega.public.lu/fr/travail/genre-ecart-salaire/mesures/logib/index.html. 
224  See https://www.bmfsfj.de/bmfsfj/service/publikationen/logib-d/82318. 
225  See https://www.eg-check.de/eg-check/DE/Weichenseite/weiche_node.html. 
226  See https://www.bmfsfj.de/bmfsfj/service/publikationen/der-entgeltgleichheit-einen-schritt-naeher/80406. 
227  Czechia, To je rovnost (This is equality) (2020), Logib – webpage, available at: https://www.rovnaodmena.cz/rovne-

odmenovani/logib.

228  See https://rovnaodmena.cz/rovne-odmenovani/kalkulacka/. 

62

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

In Estonia, employers have expressed concern about the increasing administrative burden of carrying 
out pay analyses from a gender perspective. The Estonian e-governance project, Reporting 3.0, is aimed 
at developing an automated data transmission channel for various bodies, such as the Tax and Custom 
Board and Statistics Estonia.229 There is a pilot project that involves transmitting accounting data directly 
from the institutions’ IT systems, which would enable employers to make pay analyses without creating 
additional datasets. Such initiatives could contribute to reducing the resources that are required to carry 
out pay audits. From the first half of 2019 onwards, employers are obliged to enter job titles, workplace 
location and working hours of employees into the Employment Register. The data from the Register will 
be used in a wages and salaries application that visualises median wages for the 110 most common 
occupations, beginning in spring 2020. 

In  Bulgaria,  a  priority  issue  for  the  Ministry  of  Education  and  Science  in  2017  was  to  increase 
remuneration for pedagogical experts in the pre-school and school sectors and to attract young specialists 
to the profession, as well as keeping them in this important sector, where possible.230 As the sector is 
highly  feminised,  all  improvements  are  pertinent  to  the  issue  of  equal  pay.  Since  1  September  2017, 
remuneration for pedagogical staff was increased by 15 %, the aim of the government being to double 
remuneration in the sector by the end of its mandate. Other incentives and additional payments were 
provided for those working in small towns, such as transport costs, payments for clothing, etc. There is a 
special EU-funded project in which the NGO, Gender Project Foundation (GPF) is a partner, entitled ‘Zero 
GPG – Gender equality: Innovative tool and awareness raising on GPG’. The project is about creating an 
enabling environment for tackling the gender pay gap (GPG) by working with government, trade unions, 
employers’  associations,  academics  and  NGOs.  A  manual  for  trainers  on  countering  GPG  was  created, 
as well as an innovative web-based instrument for calculating the GPG.231 Similarly, the Irish National 
Strategy for Women and Girls 2017-2020 also sets out to develop practical tools to assist employers in 
calculating the gender pay gap within their organisations and to consider its aspects and causes, mindful 
of obligations regarding privacy and data protection. 

Other states have adopted measures and tools that aim to enhance not just equal pay but gender equality 
more generally. In December 2017, the Swedish Government thus launched the Action Plan for Gender 
Equal Life Incomes, addressing a number of areas connected to life income, such as education, gender 
segregation in the labour market, gender pay gap, leave of absence and working hours, work environment 
and sick leave, and parental leave. This action plan describes the current situation and a number of issues 
that affect life income, and presents the measures that the government has implemented, or plans to 
implement,  in  order  to  reduce  income  differences  between  women  and  men.232  In  2019,  the  Swedish 
National  Audit  Office  (Swedish  NAO)  scrutinised  the  system  for  pay  audits  to  combat  pay  differences 
between men and women. The investigation showed that whereas it is unproblematic for employers to 
compare wages of employees who perform the same work, both the employers’ organisations and (to 
a somewhat lesser extent) the trade unions state that it is very difficult for employers to compare the 
wages of employees who perform work of equal value. One reason is that, to make a comparison, it is 
necessary to establish that some work is female-dominated and that other work is male-dominated. If 

229  https://e-estonia.com/statistics-estonia-reinvents-data-mining/. On 17 October 2019, Statistics Estonia and the 

Government Office presented a new web application called the Tree of Truth. It is a gauge of important national indicators, 
giving a simple, honest and objective picture of how the country is doing, https://tamm.stat.ee/?lang=en.

230  The Report on the implementation of the National Plan on Gender Equality for 2017, adopted by the Council of Ministers in 

July 2018, is available here: https://www.mlsp.government.bg/uploads/1/blgarsko-zakonodatelstvo/report-equality-2017-
final.pdf.

231  The project ‘Innovative tool and awareness raising on GPG’ https://www.tbmagazine.net/statia/razlika-v-zaplashchaneto-

po-pol-mit-ili-realnost-chast-prva.html.

232  See https://www.regeringen.se/4b0b1f/contentassets/f26c798733cd41258ec06ff8bd8186d5/handlingsplan-jamstallda-

livsinkomster.

63

the majority of the employees are of the same sex, it will not be possible to define two separate groups 
to compare. The same applies if the groups of employees are fairly gender balanced.233

In 2014, the Cypriot Government established a two-tier certification system. According to this system 
companies may receive certification for a specific good practice they implement in the field of gender 
equality, or an equal employer certification if they have established and implemented a detailed equality 
plan. In Malta as well an audit system devised by the National Commission for the Promotion of Equality 
(NCPE)  for  organisations  applying  to  be  certified  with  the  Equality  Mark  is  one  measure  that  is  used 
in order to  study the wage patterns of such organisations  and ensure that there  is  no  discrimination. 
However, the Equality Mark certification is optional and so is only taken up by organisations that take 
gender equality to heart. 

In France, companies with fewer than 300 employees can conclude an agreement with the state to receive 
financial  assistance  to  carry  out  a  study  of  their  employment  equality  situation  and  of  the  measures 
they would need to take to ensure equal opportunities between men and women. The Albanian Law on 
local government finance, No. 68/2017, provides for gender budgeting in Article 2(8): to ensure that the 
creation and distribution of local financial resources accelerates and realises gender equality.

3.1.10	 Remaining	specific	difficulties

Beyond  the  general  problem  of  wage  transparency,  many  experts  have  reported  specific  difficulties  in 
their country which obstruct the effective application and enforcement of the principle of equal pay for 
equal work and work of equal value in practice (Austria, Belgium, Bulgaria, Croatia, Cyprus, Estonia, 
Finland,  France,  Germany,  Greece,  Hungary,  Ireland,  Italy,  Latvia,  Lithuania,  Montenegro, 
Netherlands,  North  Macedonia,  Norway,  Poland,  Romania,  Serbia,  Slovakia,  Spain,  Sweden, 
Turkey, United Kingdom). 

Some  of  these  reported  difficulties  are  of  a  rather  general  and/or  persistent  nature.  In  Germany, 
indirectly discriminatory provisions in collective agreements are considered a root cause for the persisting 
gender pay gap. This is reinforced by labour court decisions stating that the evaluation of work and the 
establishment of pay systems are a crucial part of the autonomy of collective bargaining and that the 
state may not interfere with this autonomy even if the pay systems seem to be arbitrary or unjust. It is 
still to be seen whether the statute on general minimum wages, which entered into force on 1 January 
2015, might influence the gender pay gap. 

A recent case decided by the Labour Court of Berlin, concerning a female freelancer working for a public 
service broadcaster in the position of a senior editor on a full-time basis, with defined duties and receiving 
a fixed monthly remuneration, confirms this. The complainant took legal action upon realising that her male 
colleagues doing the same or equivalent work were being paid significantly more than herself. However, 
the court decided that she had not been discriminated against on the ground of sex, but rather that there 
were justified differentiations due to seniority and the different contract arrangements for freelancers 
and permanent employees, which followed from the collective agreement. The court explained that higher 
remuneration  would  mainly  depend  upon  negotiating  skills,  supposedly  more  pronounced  in  men,  and 
contractual  freedom  and  that  maternity  and  childcare  periods  would  often  lead  to  shorter  periods  of 
employment for women, less seniority and, thus, lower wages, without any discrimination being involved. 

Another problem concerns the restriction of cases to individual claims, when tackling structural problems 
(such as discriminatory classifications and pay structures). The fact that there is no possibility of collective 

233  Swedish National Audit Office (2019), Diskrimineringslagen krav på lönekartläggning – ett trubbigt verktyg för att minska 

löneskillnaderna mellan könen (The requirement for pay audits in the Discrimination Act. A blunt tool for decreasing the pay 
gap between men and women), Stockholm, p. 52 f, available (in Swedish only) at: https://www.riksrevisionen.se/rapporter/
granskningsrapporter/2019/diskrimineringslagens-krav-pa-lonekartlaggning---ett-trubbigt-verktyg-for-att-minska-
loneskillnader-mellan-konen.html. 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

or class actions regarding equal pay has been identified, time and again, as one of the main obstacles to 
achieving gender equality. 

While in Italy job classification is required by legislation to be gender neutral, no formal job evaluation 
and  job  analysis  systems  are  available  in  Italy’s  legal  and  industrial  relationships  systems.  Moreover, 
local and enterprise contracts are not easily available and seldom published either on the websites and in 
paper form. Collective agreements and job evaluation schemes are not normally monitored. 

The implementation of equal pay has received quite a lot of attention in Belgium, but the legal arsenal 
is only concentrated on one factor in the gender gap – job evaluation and classification – and not on 
the whole range. While a number of sound mechanisms are in place, such as the works mediator and 
the Special Commission, which can provide advice on equal pay disputes in response to a labour court’s 
request  and  which  are  well  equipped  to  examine  claims  of  work  of  equal  value,  no  works  mediators 
have been appointed since the act came into force four years ago and the Special Commission has been 
consulted only twice, with the last case being 30 years ago. 

In Estonia, it is considered problematic that individual pay agreements between employers and employees 
are dominant and it is often claimed that women agree to work for lower pay. Employers’ pay systems 
and practice are not monitored and the majority of employers do not carry out wage analyses from a 
gender perspective. It is hoped that the administrative burden of carrying out such analyses will reduce 
with the introduction of innovative digital solutions. However, there is a workforce shortage in the ICT 
sector, outsourcing is widely used and gender equality promotion is dependent on the human resources 
policies of the company. The Estonian state provides foreign recruitment support, as part of the ‘Work in 
Estonia’ project, but gender equality is not a priority issue in this context. In Lithuania as well there is an 
overwhelming dominance of individual agreements in the setting of wages and an absence of collective 
agreements. The rules on confidentiality are also considered to contribute to the reluctance of employees 
to challenge discriminatory practices in the area of pay. In practice, a difference in pay for women and 
men is considered to be a problem of equality law, which is governed by public law instruments, and not 
a problem related to individual labour law. 

In the Romanian private sector there is also complete discretion to negotiate salaries. In Latvia, the 
major  problem  is  that  neither  political,  nor  executive  power  recognises  gender  equality  as  a  problem. 
This is due to the fact that indicators on women’s participation in the labour market (Latvia – 72.7 %;  
EU-28 – 66.5 %);234 gender pay gap (Latvia – 15.7 %; EU-28 – 16 %);235 and women in decision-making 
bodies are relatively high in the average EU-28 context. However, such favourable statistics cannot be 
explained by actual gender equality but rather by the considerably higher level of education of women 
and the fact that women in Latvia are used to bearing a double burden of obligations – the majority still 
work on a full-time basis, while spending considerably more hours on family and household work. 

Some experts have also referred to general aspects of their labour markets, in particular the problem 
of gender segregation in the workforce. The expert on North Macedonia mentioned this as one of the 
main problems for the gender pay gap. While many government documents attribute the lack of women’s 
participation in the labour market to traditional attitudes, this claim is not supported by evidence. Research 
has shown that, actually, discrimination in the labour market, the lack of policies to reconcile work and 
family  life,  the  lack  (and  the  cost)  of  care  and  childcare  facilities  all  contribute  to  the  high  economic 
inactivity rates among women. In Slovakia as well horizontal and vertical segregation is a big problem. 
The fields of healthcare, social services and education tend to be dominated by women: over four fifths 
of the workforce in these sectors are women and the figure is three fifths for the public policy sector. 
Horizontal segregation of the labour market in Slovakia is very pronounced and ‘female’ jobs are less 

234  Eurostat 2018, ’Employment rate by sex’, available at: https://ec.europa.eu/eurostat/web/products-datasets/-/tesem010. 
235  Eurostat (2017), ‘Gender Pay Gap Statistics’, available at: https://ec.europa.eu/eurostat/statistics-explained/index.php/

Gender_pay_gap_statistics.

65

valued. The gender pay gap occurs not only between sectors, but also within sectors. A higher educational 
level does not automatically mean that women obtain better positions and better pay.236 

In 2015, the Defender of Rights produced a comprehensive study of the multiple factors that interact to 
produce the gender pay gap in France.237 First, ingrained stereotypes about male and female work lead 
to gendered orientation by schools of girls into certain types of jobs. This explains the segregation of the 
workplace, with some jobs being predominantly male and other positions predominantly female. In these 
predominantly female jobs, career advancement is not always possible and in predominantly male jobs 
there is no critical mass of women in the highest ranks, producing a glass ceiling for women. The impact 
of  maternity  enhances  the  risk  that  employers  limit  female  promotions.  As  a  result  of  these  barriers 
and child rearing, more women end up in part-time work. They suffer from discrimination, stereotypical 
images of women and biased representations of their contribution to the workplace which perpetuate 
the recurring systemic sex discrimination in employment, affecting their pay. Hence this report explains 
how all these factors correlate in a vicious circle and can prevent the effective application of equal pay 
for work of equal value. 

The German expert also observed that deep-rooted cultural and structural gender inequalities still seem 
to exist, as evidenced by the worsening gender-based segregation in the labour market.238 Gender-specific 
career choices are increasing, not decreasing. The unequal distribution of care work is persistent. Although 
significantly more women are now employed, the total working time volume of women has not increased 
– more women share the same total working time, meaning that they work in ever smaller part-time 
jobs. The massive expansion of childcare has not yet had a significant impact. Gender stereotypes, which 
are  internalised  at  an  early  age  (not  least  due  to  an  aggressive  marketing  policy  for  everything  that 
children might need, with one version for girls and one for boys), play an important role in entrenching 
gender segregation. The rise of right-wing populist parties and movements furthers anti-feminism and 
traditional gender roles.239 Moreover, left-wing policies often claim that ‘identity politics’ (meaning anti-
discrimination politics and the protection of minorities) have caused the rise of right-wing populism and 
draw the hardly helpful conclusion that they have to focus on the ‘normal citizen’ (meaning the white 
blue-collar worker).240 Instead of this kind of backlash against gender and other equality policies, new 
strategies to deal with the transformation of working life are necessary. The Bulgarian expert also noted 
that the political environment, and the backlash in interpretation of core principles, especially in the last 
two years, may represent a threat even to the understanding of concepts largely accepted to date, such 
as  equal  pay  and  equal  working  conditions.  In  Austria,  intrinsic  societal  stereotypes  result  in  a  lower 
valuing of care work and other work typically performed by women, and this became especially evident 
during the COVID-19 pandemic.

The Montenegrin expert has pointed to illegal employment as a significant problem. In Bulgaria, there 
is no substantial development of case law concerning equal pay and the lack of a clear gender approach 
in cases of pay discrimination to the detriment of women is considered a main problem. This is due, in 
the first place, to the fact that in the anti-discrimination law equal pay is regulated as equal pay for all, 
based on all grounds. Secondly, Section 3 of Chapter II of this law is called ‘Protection in the exercise of 
the right to work’ which is interpreted in practice as a separate ground of discrimination – discrimination 

236  See Porubänová, S. (2016) The gender pay gap in Slovakia, European Parliament, p. 2, available at: https://www.europarl.

europa.eu/RegData/etudes/STUD/2017/583140/IPOL_STU(2017)583140_EN.pdf, in English.

237  https://www.defenseurdesdroits.fr/sites/default/files/atoms/files/ddd_fic_20150629_salaire_egal_fh.pdf.
238  See Federal Government (2017), Second Gender Equality Report, Berlin, with further references. Documents are available 
at: https://www.gleichstellungsbericht.de/. The committee of experts consisted of Eva Kocher (chair), Thomas Beyer, 
Eva Blome, Holger Bonin, Ute Klammer, Uta Meier-Gräwe, Helmut Rainer, Stephan Rixen, Christina Schildmann, Carsten 
Wippermann, Anne Wizorek and, Aysel Yollu-Tok. 

239  E.g. AK Fe.In (2019), Frauen*Rechte und Frauen*Hass. Antifeminismus und die Ethnisierung von Gewalt (Women’s rights and 
misogyny. Anti-feminism and the ethnicisation of violence); Schutzbach, F. (2019), Antifeminismus macht rechte Positionen 
gesellschaftsfähig (Anti-feminism makes right-wing positions socially acceptable), available at: https://www.gwi-boell.de/
de/2019/05/03/antifeminismus-macht-rechte-positionen-gesellschaftsfaehig. 

240  E.g. Heisterhagen, N. (2018), Die liberale Illusion: warum wir einen linken Realismus brauchen (The liberal illusion: why we 

need a left-wing realism). 

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European Union (TFEU) and Recast Directive 2006/54)

in employment. Thus claims for equal pay are considered without regard to any grounds of discrimination, 
especially not the ground of sex. The fact that women shoulder most (or more) of the unpaid domestic and 
care work within the household, might hinder their participation in the labour market. This is specifically 
mentioned by the Cypriot expert.

In  other  countries  it  is  the  comparison  of  work  that  poses  particular  problems.  In  Croatia  and  the 
Netherlands, the actual comparator requirement and its application by the courts is deemed problematic. 
Similarly,  in  Austria,  the  lack  of  transparent,  plausible  and  binding  methods  for  comparing  different 
kinds of work and evaluating its worth is problematic for pursuing equal pay claims. The Supreme Court 
has  held  that  an  ’objective  consideration’  of  the  work  in  question  is  necessary  in  order  to  establish 
comparability, particularly regarding its requirements and specific chores.241 However, it is up to the courts 
to carry out this examination on a case-by-case basis; a more general classification scheme or method is 
not yet in place. In the Irish expert’s opinion, one of the key issues in respect of the gender pay gap is in 
segregated employment, as a complainant must have a comparator of the opposite sex in order to pursue 
an equal pay claim. The United Kingdom expert has also noted that in the case of outsourcing, there is 
the difficulty that the outsourced worker cannot generally use as a comparator a (male) worker who is 
working for the outsourcer, or for an organisation to which his job has been contracted out (this is as a 
result of the CJEU ruling in the Lawrence case).242 In contracted-out cases the pay is generally determined 
by the organisation to which the work is contracted and not the organisation for which it is (ultimately) 
done. There are examples of cases in which contracted-out workers did successfully claim equal pay with 
male comparators who had remained in the employment of the original employer.243 The British expert 
also noted that there are many difficulties in practice in relation to equal pay, because the question of 
whether work is of equal value is not one about which workers can be certain in advance of bringing a 
claim (this being a matter for the employment tribunal to determine). This problem is additional to the 
issues associated with all equal pay (and, indeed, discrimination) claims: complex laws to navigate; the 
requirement in practice for (expensive) specialist legal assistance; and the concerns workers have about 
being victimised for bringing discrimination/equal pay complaints. 

The Polish expert has referred to the lack in many companies of a system of occupational classification 
as  well  as  the  lack  of  a  universal  system  for  valuing  work  and  establishing  criteria,  allowing  for  the 
comparison of various kinds of work. This also causes difficulties in claiming damages resulting from wage 
discrimination. In Cyprus as well most employers in the private sector do not have an evaluation and 
job classification system or job description scheme put into place nor have they proceeded to evaluating 
posts or professions with a view to defining same work or work of equal value. Earlier research on the 
gender pay gap has also revealed that posts mainly occupied by women are placed on lower salary scales. 
The Latvian expert has criticised the lack of definition of the equal pay for equal value principle, the 
lack of criteria for assessing the equal value of work, and also the legislator’s failure to take adequate 
account  of  EU  gender  equality  law.  The  Latvian  Parliament  adopted  a  law  on  remuneration  of  state 
officials and employees with a view to establishing a uniform remuneration system, but excluded school 
teachers from it. Since most of these are women, this constitutes indirect discrimination. In Greece, the 
lack  of  transparency,  together  with  the  lack  of  revision  of  traditional,  felt-fair  (i.e.  classifications  that 
have been traditionally considered fair due to stereotypes, without any justification), non-transparent job 
classifications to the detriment of formerly ‘female’ (and still female-dominated) categories, render the 
legal provisions on equal pay to a great extent ineffective.

241  Austria, Supreme Court, judgment of 14 September 1994, 9 ObA 801/94; Austria, Supreme Court, judgment of 20 May 

1998, 9 ObA 350/97d; Austria, Supreme Court, judgment of 8 May 2002, 9 ObA 108/02a.

242  CJEU, C-320/00, A. G. Lawrence and Others v Regent Office Care Ltd, 17 September 2002.
243  United Kingdom, Glasgow City Council v Unison Claimants, Court of Session, [2017] CSIH 34, 30 May 2017, available at: 

https://www.scotcourts.gov.uk/search-judgments/judgment?id=669034a7-8980-69d2-b500-ff0000d74aa7; Asda Stores Ltd 
v Brierley, Court of Appeal (Civil Division), [2019] EWCA Civ 44, 10-12 October 2018, available at: https://www.bailii.org/ew/
cases/EWCA/Civ/2019/44.html.

67

The Swedish expert has noted that the main problem does not reside in proving that work is of equal 
value but in proving that actual discrimination took place, the Labour Court being too ready to accept 
employers’ justifications for pay differentials. Likewise, the Italian expert has observed that many gender-
neutral criteria can easily be explained by the employer as being objectively necessary and proportionate, 
responding to a real need of the business. Likewise, the Italian expert has observed that it might be 
difficult  to  detect  the  gender  pay  gap,  which  can  be  concealed  in  an  apparently  neutral  definition  of 
wages (and be a form of indirect discrimination) stated by collective agreements or in additional wages 
bargained at local or enterprise level and in personal bonuses; most of the time, such criteria can easily 
be  explained  by  the  employer  as  objective,  necessary  and  proportionate  criteria,  which  are  essential 
requirements of the job. 

The Polish and Hungarian experts have noted similar problems in proving discrimination. An important 
case in this regard occurred in 2017, when the Equal Treatment Agency used statistical evidence and 
concluded that a human resources measure that is still widespread, which links a portion of pay to an 
employee’s presence in the workplace constitutes indirect pay discrimination as it is disproportionately 
detrimental to female workers with young children, who take more leave to care for their sick children 
than men do.244 

Outsourcing, subcontracting and (other) exclusions from the scope of the law constitute a problem in a 
number of countries. In Macedonia, the Law on Agencies for Temporary Employment245 thus declares 
that temporary employees (employees hired via the agency; subcontractors) cannot be paid less than 
non-agency employees for the same or similar work, but this is not the case for seasonal and part-time 
workers and for those working from home.246 There are no clauses on their protection except for part-
time workers, where the word ‘proportionally’ is used concerning pay. For all these categories, the issue 
of remuneration should be regulated exclusively by the employment contract between the employer and 
the employee. 

In Turkey, subcontracting is a justification for pay differentials where there are different employers. In 
practice, primary employers do establish a primary employer-subcontractor relationship by engaging the 
primary  employer’s  employees  through  the  subcontractor247  in  order  to  keep  employee  payments  low, 
avoid obligations related to social insurance, and prevent employees from using their trade union rights 
or collective labour agreements. 

Greek case law considers out-sourcing a justification for pay differentials between workers covered by 
different wage-fixing instruments. This applies to workers employed by different employers, but also to 
those employed by the same employer who are covered by different wage-fixing instruments, which is 
incompatible with EU law. It is also a justification in the case of different employers, which is compatible 
with EU law. Equal pay cases are scarce in Greece and usually do not concern gender discrimination, even 
though in practice discrimination against women is quite common and has been growing since the onset 
of the financial crisis. 

However, it is notable that, in 2017, the Supreme Civil Court dealt with a few cases and actually adopted 
two contradictory approaches towards levelling up as an effective way of eliminating gender discrimination 
in pay. In the first case, a company’s statutes provided that the employment relationship had to end after 
30 years of actual service for male employees and after 25 years of service for female employees. The 
court found that this constituted gender discrimination to the detriment of male employees and extended 

244  Hungary, Equal Treatment Authority (Egyenlő Bánásmód Hatóság) Decision No. EBH/130/2017.
245  Republic of North Macedonia, Law on Agencies for Temporary Employment, 2006. Full title: Republic of North Macedonia, 

Law on Agencies for Temporary Employment (Закон за агенции за привремено вработување), Official Gazette of the 
Republic of Macedonia, Nos. 49/2006, 102/2008, 145/2010, 136/2011, 13/2013, 38/2014, 98/2015, 147/2015, 27/2016.

246  Republic of North Macedonia, Labour Law, 2005.
247  See e.g. Turkey, Court of Cassation 7th Division, 19.10.2015, 16920/19734; Bakirci, K (2017), ‘The concept of employee: The 

position in Turkey’ in, Restatement of labour law in Europe: Vol I: The concept of employee, 1st Edn (B. Waas/ G.H. van Voss 
eds.), Hart Publishing, United Kingdom, pp. 721-747.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

to them the more favourable treatment provided to female employees, so that they could benefit from 
the legal compensation and from even higher compensation within the framework of a voluntary exit 
scheme. In contrast, in two other rulings, the Supreme Civil Court did not apply the equality principle in the 
same way. These cases concerned the distribution of the capital of a group insurance scheme following 
the transfer of a bank and the refusal of its successor to continue this voluntary practice. The court found 
the liquidation that took into account different ages for men (65 years) and for women (60 years) to be 
lawful and rejected the male applicants’ claim that this constituted discrimination based on sex, with the 
reasoning that the more favourable age provision that was valid for women must be deemed invalid and 
could not be extended to male employees (levelling down). Apart from this, the Ombudsman found that 
cuts in pay and allowances during pregnancy, maternity and parental leave have increased the gender 
pay gap. 

Some experts have also underscored the impact of the financial crises and austerity measures on securing 
equal pay. In Greece, there is thus a common belief that austerity measures in the years of the crisis 
have  had  an  adverse  impact  on  wages  exceeding  those  stipulated  in  collective  agreements  (in  some 
cases even shrinking to the minimum wage); this has resulted in a significant decrease in the gender pay 
gap while structural inequalities still persist. In the private sector, the rapid growth of flexible forms of 
employment as well as the replacement of contracts of indefinite duration by fixed-term contracts has 
led to a significant reduction in wages. The International Labour Organization Committee of Experts on 
the Application of Conventions and Recommendations (ILO CEACR) stresses, referring to the Ombudsman, 
that flexible forms of employment, mainly part-time and rotation work, are more often offered to women, 
especially during pregnancy and upon return from maternity leave, reducing their levels of pay, while lay-
offs due to pregnancy, maternity and sexual harassment are increasing. ‘Flexibility had been introduced 
without sufficient safeguards for the most vulnerable, or safeguards which had been introduced by law 
were not effectively enforced.’248 In its 2016 Observations on the implementation of ILO Convention No. 
100 (equal remuneration), the ILO CEACR again deplores the absence of impact assessment of austerity 
measures on women’s pay, while ‘the rapid growth of flexible forms of employment has led to a widening 
of the gender pay gap and to obstacles in women’s career development’.249 

In Germany, the government took several far-reaching decisions as a result of the financial crisis. On 
the one hand, it has reduced social security or made access much more difficult, a decision from which 
women in particular are suffering as a result. It has also focused on export industries, thereby promoting 
industries in which men predominate, albeit without taking into account the fact that they are undergoing 
fundamental transformation processes. Such export industries continue to be the focus of attention, and 
at the same time no concept has been developed as to how to deal with the rapidly growing services 
sector, in which men and women work under mostly unacceptable conditions and with wages that do 
not secure their livelihoods. With the privatisation of essential areas of previously public tasks, the state 
has released significant fields of work from its control, and the Minimum Wage Act is proving to be fairly 
ineffective. 

3.2  Equal treatment at work; access to work and working conditions

EU gender equality law also covers employment, in particular access to employment, promotion, access 
to vocational  training and working conditions, including conditions governing  dismissal  (see  Chapter  3 
of  Recast  Directive  2006/54/EC).  Here  we  discuss  the  extent  to  which  domestic  law  aligns  with  both 
the personal and material scope of the Recast Directive in this respect, possible exceptions to the equal 
treatment principle and particular difficulties that emerge in relation to equal treatment at work.

248 

249 

ILO Greece: Observation (CEACR), adopted 2011, published 101st ILC session (2012), Equal Remuneration Convention 1951 
(No. 100), available at: www.ilo.org/dyn/normlex/en/f?p=1000:13201:0::NO:13201:P13201_COUNTRY_ID:102658.
ILO Greece, Observation (CEACR), adopted 2016, published 106th ILC session (2017), available at: www.ilo.org/dyn/normlex/en/f?
p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3297841. 

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3.2.1	 The	personal	and	material	scope

Transposition in this area has generally taken the form of a general gender equality act and, very often, 
amendments to labour law or to legislation concerning civil servants. Most of these national laws provide 
for a definition of the personal scope in relation to access to employment, vocational training and working 
conditions  (see  Article  14  of  Directive  2006/54),  except  for  Belgium,  Czechia,  Latvia,  Luxembourg, 
the Netherlands and Norway. But this does not necessarily seem to be problematic. While the Belgian 
Gender Act has no proper personal scope, its material scope is broader than all the EU gender equality 
directives, and as a result it applies to anyone involved in any situation falling within the material scope. 
In  the  Netherlands  as  well  the  personal  scope  derives  from  the  material  scope  of  the  law.  Czech 
law  provides  that  parties  to  a  legal  relationship  are  obliged  to  guarantee  the  equal  treatment  of  all 
physical persons who make use of their right to employment and the Anti-discrimination Act specifically 
provides for equal treatment in access to employment, vocation, entrepreneurship, self-employment etc. 
In Greece, the legislative definition of the personal scope is broader than in EU law, but the concept of 
‘worker’ ensues from case law. In Luxembourg, the law reproduces Article 14 of the Directive in this 
regard, but does not define the concept of ‘worker’. The application of the link of subordination ensues 
from case law. Norwegian law does not define the personal scope nor the concept of ‘worker’, but the 
law in combination with the case law shows compliance with EU (case) law. There is also no definition 
of a ‘worker’ or ‘employee’, an ‘employment contract’ or an ‘agreement’ in statutory law in Sweden, but 
the Swedish concept of an employee is known to be relatively broad from an international perspective. 
Whether  Montenegrin  law  contains  a  concept  of  ‘worker’  or  ‘employee’  in  conformity  with  EU  law  is 
unclear. 

Most legal systems provide for a definition of a ‘worker’ or, alternatively, of an employment agreement 
or contract (Netherlands, Portugal), which is generally considered to be in compliance with the case 
law  of  the  CJEU.  Yet  there  are  also  still  some  deficiencies  to  be  signalled  (Austria,  Czechia,  Latvia, 
Lithuania,  Turkey,  United  Kingdom).  The  personal  scope  of  the  equal  pay  principle  in  Lithuanian 
law is rather confusing and does not encompass everyone falling with the EU notion of worker, e.g. it 
excludes public servants. By way of legal analogy, however, they may still enjoy the same protection as 
workers. The Austrian expert has noted that ‘free contract workers’ (people working under contractual 
conditions  that  cannot  be  wholly  subsumed  under  labour  law,  entailing  some  characteristics  of  self-
employment), are not fully covered by labour law protections for workers and employees, even if in reality 
they  share  more  characteristics  with  regular  employees.  This  can  especially  put  female  free  contract 
workers in precarious positions, particularly in cases of pregnancy and when child-care obligations exist, 
since maternity and income-related childcare benefits are often lower and more complicated to apply for 
than for employees. In Turkish law the concept of ‘worker’ covers dependent workers (employees with a 
private law employment contract, civil servants, public officials with an administrative law employment 
contract)  and  self-employed  persons.  However,  the  concept  of  ‘worker’  is  not  in  compliance  with  EU 
law because employees with a private law employment contract, civil servants, public officials with an 
administrative law employment contract and self-employed are regulated by different legislation, they 
have  different  rights  and  they  are  under  different  obligations.  In  Cyprus  and  the  United  Kingdom, 
(certain types of) self-employed persons are excluded from the definition of worker, which is deemed to 
be inconsistent with EU law. Latvian law only protects judges and prosecutors against discrimination 
with regard to access to employment, and members of the boards of directors of capital companies are 
not protected against discrimination by law at all. Slovene law provides a relatively narrow definition of 
‘worker’, which is sufficiently in conformity with the Directive but has not been further developed in case 
law. In Iceland, the new GEA No. 150/2020 also applies to people who are publicly registered as gender 
neutral. 

The  material  scope  in  relation  to  (access  to)  employment  has  also  been  defined  in  the  national  law 
of most states, in accordance with Article 14(1) of Recast Directive 2006/54, except for Norway and 
Sweden where the ban on any form of discrimination covers any decision-making by the employer in 
working life with no further specification whatsoever. The Swedish expert considers this problematic from 

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European Union (TFEU) and Recast Directive 2006/54)

the perspective of transparency for those concerned. Norwegian law applies to all areas of society and 
can as such be seen as broader than the scope of the Directive. 

In other states as well the scope is wider than that contained in the Directive, as has been noted above 
in relation to Belgium. In Croatia, it also includes discrimination in relation to work-life balance, as well 
as pregnancy, giving birth, parenting and any form of custody. French law simply states that it applies to 
the public and private sector and covers all aspects of working life. Spanish law also applies, for instance, 
to staff recruitment and evaluation bodies. 

In  Greece,  the  scope  is  wider,  also  prohibiting  discriminatory  publications  and  advertisements  and 
mentioning ‘family status’ as a prohibited ground of discrimination. Romanian law is also considered 
to be wider in scope. The law mentions ‘family status’ and ‘marital status’ as forbidden grounds. It also 
lists various aspects related to employment that are protected, from choosing a profession or activity to 
membership of trade unions and social services. Irish law comprises an extensive, detailed overview of 
the material scope and, most recently, the publication, display or causing to be published or displayed, 
of a discriminatory advertisement in so far as this relates to access to employment has been included in 
this as well. An ‘advertisement’ is defined as ‘[including] every form of statement to the public and every 
form of advertisement, whether to the public or not’.

In  other  countries,  the  material  scope  appears  more  limited  in  certain  respects.  The  Czech  Anti-
discrimination Act does not include, for example, vocational training and access thereto, promotion or 
recruitment conditions. In Portugal, the material scope does not cover self-employment and occupation, 
since  self-employment  is  outside  the  scope  of  the  Labour  Code.  Lithuanian  law  is  found  to  be  in 
contravention  of  EU  law  as  regards  non-discriminatory  access  to  employment  and  promotion  for  the 
self-employed,  which  are  not  stipulated  in  the  relevant  laws.  In  Latvia  the  material  scope  is  only 
defined by the Labour Law, which is limited with regard to personal application. Moreover, there is no 
complete protection against discrimination with regard to access to membership of workers’, employers’ 
or professional organisations, including trade unions. In Finland, the material scope of the provision on 
(access to) employment is formulated as a form of ‘discrimination in working life’ by an employer, and 
refers to situations of access to work, and thus depends on the definitions of ‘employer’ and ‘employee’. 
The term ‘employee’ even covers people whose work is comparable with employment, but some self-
employed people may fall outside the definition. A separate provision covers discrimination in relation to 
access to education.

3.2.2	 Exceptions	

The  possibility  of  exceptions  for  occupational  activities,  as  provided  for  in  Article  14(2)  of  the  Recast 
Directive,  has  been  implemented  in  the  national  laws  of  all  states,  except  for  Greece.  Exceptions,  or 
grounds for exceptions, provided for in many such laws (or ensuing from case law) include: 

 –

 –
 –
 –

 –
 –

 –

singers,  dancers,  actors  and  artists  (Belgium,  Bulgaria,  Cyprus,  France,  Italy,  Netherlands, 
Northern Ireland);
fashion models (Belgium, Italy) and photographic models (Belgium, France);
prison warders (Belgium) or work in male prisons and (public and private) security forces (Cyprus);
work for the Marine Corps and the submarine service (Netherlands) and for the military depending 
on the type of military force (Romania), such exceptions having been repealed in other countries 
(France); in Estonia compulsory military service still exists for men only;
equal opportunities commissioners and official guardians (Germany);
church  ministers  (Netherlands)  and  other  positions  in  which  religious,  ideological  conviction  or 
national/ethnic origin fundamentally determine the nature of the organisation (Hungary) or religious 
grounds as such (Bulgaria, United Kingdom); 
preservation of decency or privacy (Northern Ireland) or moral reasons (Cyprus);

71

 –

 –
 –
 –

 –

 –

where the job is likely to involve the holder of the job doing their work, or living, in a private home 
(Northern Ireland);
personal service, care and nursing (Cyprus, Netherlands, Northern Ireland);
biological characteristics being determinant for the job (Austria);
positions  in  foreign  countries  that  do  not  apply  the  principle  of  gender  equality  in  employment 
(Belgium) or in countries whose laws or customs are such that the duties could not, or could not 
effectively, be performed by a woman (Cyprus, Northern Ireland);
where the essential nature of the job calls for a man for reasons of physiology (excluding physical 
strength or stamina; Northern Ireland) (excluding natural health or strength; Cyprus);
working underground in mines (Cyprus, Turkey) or working underground or underwater work such 
as cable-laying and the construction of sewers and tunnels (Turkey).

In other states, there has been no identification of the possible jobs concerned (Latvia, Liechtenstein) 
or the exception is formulated in a general way referring to the nature of the work or the context in which 
the work is carried out, without further specification (Czechia, Denmark, Lithuania, North Macedonia, 
Norway, Poland, Portugal, Slovakia, Slovenia, Sweden). In Iceland, Article 19(3) of the GEA allows 
the advertisement of a vacant position that prefers one sex over the other, if the aim of the advertiser is 
to promote a more equal representation of women and men in an occupational sector. The same applies 
if there are ‘valid reasons’ for advertising for a man or a woman only. In Finland, exceptions can be made 
for a ‘weighty and acceptable reason’ but it is unclear what this covers and whether it aligns with EU law. 

The exceptions provided by Polish law offer the employer some leeway not only in the cases listed in 
Article 14 (access to employment, including the training leading to it) but also regarding any other terms 
and conditions of employment. In Hungary, for employment discrimination cases, the Equal Treatment Act 
used to establish an additional, somewhat broad and vaguely worded exemption,250 which was modified 
in 2017 and entered into force on 1 January 2018. Most importantly, the amendment251 has reduced 
the scope of the exemption from any kind of employment situation to only the hiring process, and the 
wording of the provision is clearer. By now repeating the wording of Article 14(1) of Directive 2006/54, the 
transposition of the EU acquis into Hungarian legislation has been improved. Yet, the exception provision 
in the Equal Treatment Act252 does allow employers to prove that, ‘by objective consideration’, there is 
‘a reasonable explanation’ for discrimination, ‘directly related to the relevant [employment] relationship’. 
This exception can cover situations where, for example, sex discrimination is justified by deeply rooted 
socio-cultural norms (e.g. that bath attendants should be females in a women’s public bath). However, 
sometimes the (alleged) financial interest of the employer is also seen as a ‘reasonable explanation’ for 
sex discrimination, thus the phrasing of this provision may be problematic from the aspect of gender 
equality.  In  Italy,  derogation  is  possible  regarding  ‘particularly  strenuous’  jobs,  tasks  and  duties  as 
provided for by collective agreements. This exception has always been deemed to be in compliance with 
EU law, since it is also considered a rational choice of the legislator to identify these jobs in collective 
bargaining rather than to set them in stone in legislation. 

Most national laws also provide for the exception on the protection for women, in particular as regards 
pregnancy and maternity (Article 28(1) of the Recast Directive), except for Germany, Latvia and North 
Macedonia. In Greece, the protection of paternity and family life is added. In Hungary, the exception on 
the protection for women in relation to pregnancy and maternity has not been implemented explicitly into 
national law, but the Equal Treatment Act covers ‘motherhood (pregnancy)’ as a protected ground against 
any  form  of  discrimination,  including  in  the  area  of  employment  (access  to  employment,  advertising, 

250  Hungary, Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV. törvény 

az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról), 28 December 2003, Article 22(1) Point (a).

251  Hungary, Act L of 2017 amending certain Acts in respect of the entry into force of the Act on the Code of General 

Administrative Procedure and the Act on the Code of Administrative Court Procedure (2017. évi L. törvény az általános 
közigazgatási rendtartásról szóló törvény és a közigazgatási perrendtartásról szóló törvény hatálybalépésével összefüggő egyes 
törvények módosításáról), 16 May 2017, Article 226(2). 

252  Hungary, Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV. törvény 

az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról), 28 December 2003, Article 7(2) Point (b).

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European Union (TFEU) and Recast Directive 2006/54)

hiring and working conditions).253 In France and Italy, the law does not explicitly provide for this either, 
but it does not impede as such the definition of some specific rules for women. Polish law does not permit 
pregnant  and  breastfeeding  women  to  perform  work  that  is  particularly  arduous  or  harmful  to  their 
health, a list of such work being laid down in the Ministerial Act of 3 April 2017. In Spain, notwithstanding 
the applicability of the pregnancy and maternity protection rules, it is impossible to prohibit women from 
performing certain professional activities. The Constitutional Court has declared some cases to be non-
constitutional where women had been denied access to certain jobs based on the risks that there could 
be to their health, if those working conditions could be equally hazardous to men. 

3.2.3	 Particular	difficulties

A  number  of  national  experts  have  also  reported  particular  difficulties  related  to  the  personal  and/or 
material scope of national law in relation to access to work, vocational training, employment, working 
conditions etc., concerning a broad range of issues:

 –

 –

 –

 –

 –

Certain categories of workers being excluded from the personal/material scope of the national law, 
such as certain types of self-employed workers (Germany), domestic workers who work four days 
a  week  or  less  in  a  private  household  (Netherlands)  or  the  discriminatory  termination  of  self-
employment contracts by employers/clients not being explicitly covered (Netherlands).
Problems  related  to  non-discriminatory  hiring  and  promotion  (Czechia),  women  still  often  being 
rejected on grounds of pregnancy, motherhood and family obligations (Estonia, Montenegro) or 
on the basis of the argument that it’s a ‘man’s job’ (Serbia) or that a man is more suitable for the 
position (Montenegro). In Montenegro these problems occur notably in the private sector. 
Discriminatory dismissal after maternity leave or reassignment to a lower or less well-paid position 
when returning from parental leave (Montenegro, Serbia).
Difficulties for women in making use of their right to return to work or to an equivalent job after 
pregnancy and maternity leave, especially if a reorganisation of work has led to the termination of 
certain jobs (Croatia).
Exceptions  regarding access to certain jobs  on religious  grounds  (Bulgaria);  it  is  considered  that 
these cannot be a priori justified and there is a potential problem of non-compliance with EU law in 
this regard.

 –

 – Wrongful use of terminology; in Latvian law, it is not clearly stated that non-compliance with special 
protection measures leads to discrimination based on sex. It also uses the formulation ‘prohibition 
of differential treatment’ instead of ‘prohibition of discrimination’, this being problematic from the 
perspective that equal treatment in different situations may amount to discrimination as well. 
In  Estonia  it  is  common  practice  that  job  applicants  are  asked  about  their  personal  life  in  job 
interviews. These cases do not reach the court, but there are complaints to the Gender Equality and 
Equal Treatment Commissioner and discussed in the Labour Dispute Committee. In 2019 the Gender 
Equality and Equal Treatment Commissioner received 116 (out of 304) complaints regarding labour 
relations.254 In Austria and Croatia, this is also a frequent occurrence, despite being prohibited by 
law.
The  Serbian  expert  has  also  reported  that  traditional  gender  stereotypes  influence  the  fact  that 
women dedicate significant time to unpaid jobs and childcare. The majority of citizens believe that 
successful women neglect their family duties and that a higher salary unavoidably causes family 
problems. This is reflected in the gender gap in employment (11 %) and women only occupying 30 % 
of leadership positions. 
In Montenegro, although there are cases of women being dismissed when they become pregnant 
or immediately after they start or have used their pregnancy leave, no such judicial cases have been 
reported. Such cases often (almost always) occur in the private sector and particularly in undeclared 

 –

 –

253  Hungary, Act CXXV of 2003 on Equal Treatment and the Promotion of the Equality of Opportunities (2003. évi CXXV. törvény 

az egyenlő bánásmódról és az esélyegyenlőség előmozdításáról), 28 December 2003, Article 8(l) and Article 21(a)-(e).

254  https://volinik.ee/voliniku-2019-aasta-tegevuste-ulevaade/.

73

 –

 –

employment. There is a clear need for education and awareness-raising, especially in the context of 
work in the private sector. 
In Croatia, national law and case law do not provide adequate protection against the non-renewal 
of a fixed-term contract and non-continuation of a contract for women who are pregnant and/or 
have given birth. Statistics show that women are more likely to be hired under fixed-term contracts, 
and this fact is almost common knowledge in Croatia.255 Nevertheless, it would be difficult to prove 
that a fixed-term instead of an open-ended contract was concluded solely because of a person’s 
sex (predominantly women) or that a new fixed-term or open-ended contract after the expiry of the 
existing contract was not offered because of discrimination.
In  Sweden,  according  to  the  Employment  Protection  Act,  an  employer  is  free  to  interrupt  a 
probationary  employment  at  any  time  and  the  decision  does  not  have  to  be  justified.  In  relation 
to  pregnant  employees  in  probationary  employment,  this  means  that  the  obligation  in  Article  10 
of Directive 92/85/EEC to cite duly substantiated grounds for dismissal in writing is not upheld in 
Swedish law.

The COVID-19 crisis has also had an effect on equal access to work in many Member States. For example, 
the expert for Czechia reports that the number of women in Czechia who are able to execute their job 
duties remotely is approximately 5 percentage points lower than the number of men (21 % of women in 
comparison with 26 % of men).256 This means a larger risk of job loss for women. Job loss was greater 
for women than men during the crisis in Serbia. In Spain, general statistical series257 that have gathered 
2020 data show that the crisis following the measures taken to control the COVID-19 pandemic have 
hit female employment harder. For example, the female unemployment rate grew from 15.55 % in the 
last quarter of 2019 to 18.33 % in the last quarter of 2020, whereas unemployment for men rose from 
12.23 % to 14.17 %. 

In  Lithuania,  during  the  COVID-19-related  quarantine  in  2020,  women  accounted  for  about  60  %  of 
those in employment with reduced working hours. About 25 % of them did not work or worked fewer 
hours  due  to  quarantine.  In  Romania,  data  from  NGOs  shows  that  the  number  of  women  who  are 
unemployed increased by 50 % during the COVID-19 pandemic, compared to a 16 % increase for men. As 
a result, two thirds of people who became unemployed in 2020 were women.258 In Turkey, around 42 % 
of  employed  women  work  in  the  informal  (unregistered)  sector  as  carers,  domestic  workers,  seasonal 
workers  and  unpaid  family  workers,  without  any  social  protection.259  Women  working  in  the  informal 
sector were the first to be hit by the crisis, losing their jobs and income. Since they are not registered, they 
cannot benefit from any of the measures taken by the Government to protect workers. 

The Portuguese expert commented that Government information260 regarding the payment of a special 
assistance allowance paid during the first months of the pandemic indicates that this allowance was paid 
mostly to women (82 %). This might be due to the gender pay gap – as women earn less than men, the 

255  See Croatian Employment Service (2019) Annual Report 2018 and monthly reports, available at: https://www.hzz.hr/usluge-

256 

poslodavci-posloprimci/publikacije-hzz/. 
Idea (2020), ‘Rozdílné ekonomické dopady krize covid-19 na muže a ženy v Česku’ (Different economic consequences 
of covid-19 on women and men) – research paper, available at: https://idea.cerge-ei.cz/images/COVID/IDEA_Gender_
dopady_covid-19_cerven_21.pdf.

257  Spain, National Statistics Institute, Labour Force Survey 2020 (Encuesta de Población Activa), https://www.ine.es/jaxiT3/

Datos.htm?t=3996.

258  Romania, FILIA Centre, National Agency for Equal Opportunities between Women and Men (2021), ‘Experienţele femeilor 

în timpul pandemiei. Starea de fapt şi recomandări pentru măsuri post-criză sensibile la gen’ (‘Women’s experiences during 
the pandemic. Statement of the facts and recommendations for gender-sensitive post-crisis measures’) January 2021, p. 21.

259  Turkey, Bakirci, K. (2020) ‘Flash Report: Impact of COVID-19 measures on women in Turkey’, European network of legal 
experts in gender equality and non-discrimination, 3 July 2020. https://www.equalitylaw.eu/downloads/5171-turkey-
impacts-of-covid-19-measures-on-women-in-turkey-118-kb; UN Women Turkey Office (2020), The economic and social 
impact of COVID-19 on women and men: Rapid Gender Assessment of COVID-19 implications in Turkey https://reliefweb.int/
sites/reliefweb.int/files/resources/73989_rapidgenderassessmentreportturkey.pdf.

260  This information was disclosed in a meeting of the CIG – Commission for Equality and Citizenship – by the Minister in 

charge of equality issues.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Equal pay and equal treatment at work (Article 157 on the Treaty on the Functioning of the  
European Union (TFEU) and Recast Directive 2006/54)

financial family loss is lower if the woman stops working than the man – but it also demonstrates that 
even during this crisis, women tend to take the lead in caring for children.

In the Netherlands, the government has created various income support arrangements for entrepreneurs, 
self-employed  people  and  flexible  workers.  These  arrangements  operate  on  the  basis  of  reference 
requirements, i.e. whether one is entitled to income support depends on the loss of income in reference 
to an earlier period, in particular 2019. This might be to the disadvantage of women who were pregnant 
or gave birth during the reference period and therefore had less income. They do not qualify, or only to 
a lesser extent, for the income support. For practising lawyers, the Dutch Bar Association extended the 
reference period in these situations. Women’s organisations have asked the government to extend the 
reference period in these situations for the more general COVID-related income support schemes. However, 
the government has so far refused to allow this request, stating that the income support schemes are 
very broad and general in nature and do not allow for specific arrangements for specific groups.261

The Finnish expert also commented that, due to the gender segregation of the Finnish labour market, the 
impact of the COVID-19 pandemic on the Finnish labour market is also gendered. The Finnish Institute for 
Health and Welfare has ordered a comprehensive study of the impact of COVID-19 on gender equality.262 
One  of  the  issues  investigated  will  be  the  gendered  impact  on  employment,  the  labour  market  and 
working conditions. The expert for North Macedonia also mentioned that women’s particularly vulnerable 
position and potential loss of income was also confirmed by the European Policy Institute’s assessment of 
the COVID-19 impact on Roma Women.263

However, it should also be mentioned that the full effects of the crisis on gender equality in relation to 
equal pay, equal treatment at work and access to work cannot yet be fully appreciated. A more complete 
picture of this should emerge in the coming years.

261  The NGO Bureau Clara Wichmann drew attention to the reference period and its possible consequences for women. See: 

https://clara-wichmann.nl/nieuws/vrouwelijke-ondernemers-worden-benadeeld-door-de-corona-steunmaatregelen-dit-is-
hoe-wij-in-actie-komen (Female entrepreneurs put at a disadvantage by the corona support schemes: this is how we take 
action).

262  Finland, Koronakriisin vaikutukset sukupuolten tasa-arvoon Suomessa (Impact of the corona crisis on gender equality in 

Finland), https://thl.fi/fi/tutkimus-ja-kehittaminen/tutkimukset-ja-hankkeet/koronakriisin-vaikutukset-sukupuolten-tasa-
arvoon-suomessa.

263  Kamberi, I. (2020), Challenges facing Roma during the crisis caused by COVID-19, https://epi.org.mk/wp-content/uploads/ 

2020/06/roma_kovid-19_eng.pdf.

75

4	

	Pregnancy,	maternity,	paternity,	parental	and	other	types	of 	
leave related to work-life balance

In addition to the general prohibitions of direct and indirect discrimination,264 EU legislation (and CJEU case 
law) explicitly prohibit any less favourable treatment of women in relation to pregnancy and maternity 
leave  in  the  Recast  Directive  2006/54/EC.265  However,  provisions  concerning  the  protection  of  women, 
particularly as regards pregnancy or maternity are allowed266 or even required. Currently, two directives 
provide specific protection and rights in relation not only to pregnancy and maternity, but also to parental 
leave.  The  Pregnant  Workers  Directive  92/85/EEC  had  to  be  transposed  by  November  1994  into  the 
national law of the EU Member States, while this was required for the Parental Leave Directive 96/34/EC 
by June 1998.267 Directive 2010/18/EU repealed Directive 96/34/EEC by 8 March 2012 and implemented 
the revised agreement on parental leave that the European social partners reached in June 2009, which 
lays down minimum requirements on parental leave and time off for force	majeure.268 

Article  33  of  the  Charter  of  Fundamental  Rights  of  the  EU  on  the  reconciliation  of  private/family  life 
and work is also relevant when Member States implement EU law.269 As regards self-employed workers, 
Directive 2010/41/EU applies to maternity benefits (see Section 7).270 In April 2017, the Commission’s 
initiative for the European Social Pillar recognised once again the importance of work-life balance for 
workers, as the Pillar not only includes the principle of gender equality and equal opportunities, but also 
work-life balance.271 The European Commission simultaneously published a proposal for a directive on 
work-life balance.272 This proposal was adopted two years later and the Directive 2019/1158 on work-life 
balance for parents and carers – which will repeal the Parental Leave Directive 2010/18/EU273 – entered 
into force on 12 July 2019 and has to be implemented into national law by 2 August 2022.274 This Chapter 
provides a comparative analysis of the implementation into national law of Directives 92/85/EEC and 
2010/18/EU, as well as relevant national law. 

A  specific  difficulty  concerning  leave  is  that  the  names  of  some  forms  of  leave  in  a  few  countries  do 
not correspond to the qualification of the different forms of leave in EU law. For example, in Portugal, 

264  Mulder, J. (2020) Indirect sex discrimination in employment, European Commission, available at: https://www.equalitylaw.eu/

downloads/5362-indirect-discrimination-in-employment-pdf-1-434-kb.

265  See Article 2(2)(c) 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), OJ L 204, 26.7.2006, pp. 23–36, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri= 
CELEX%3A32006L0054.

266  See Article 28(1) of the Recast Directive 2006/54/EC.
267  Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety 

and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual 
Directive within the meaning of Article 16(1) of Directive 89/391/EEC), OJ 1992, L 348/1 available at: https://eur-lex.europa.
eu/legal-content/EN/TXT/?uri=celex%3A31992L0085; A proposal aimed at amending this directive (COM 2008(637) final) 
was withdrawn on 6 August 2015 due to the lack of agreement after years of negotiations, see https://eur-lex.europa.eu/
legal-content/EN/ALL/?uri=CELEX:52008PC0637.

268  Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave 

concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, OJ 2010, L 68/13 available at: 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010L0018. 

269  See, for example: McColgan, A. (2015), Measures to address challenges of work-life balance in the EU Member States, Iceland, 
Liechtenstein and Norway, European Union, available at: https://www.equalitylaw.eu/downloads/3631-reconciliation.

270  See in particular Article 8.
271  See The European Pillar of Social Rights in 20 Principles, in particular principles 2, 3 and 9: https://ec.europa.eu/info/

european-pillar-social-rights/european-pillar-social-rights-20-principles_en.

272  Proposal for a Directive of the European Parliament and of the Council on work-life balance for parents and carers and 
repealing Council Directive 2010/18/EU, COM (2017) 253, available at: https://eur-lex.europa.eu/legal-content/EN/
TXT/?uri=CELEX%3A52017PC0253. 

273  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, pp. 79-93, available at: https://eur-lex.europa.
eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1158&qid=1644579159781&from=EN. 

274  Article 20(1). For more information see Chieregato, E. (2020), ‘A work-life balance for all? Assessing the inclusiveness of 

EU Directive 2019/1158’ International Journal of Comparative Labour Law and Industrial Relations, 36(1) and Oliveira, Á., De 
la Corte-Rodríguez, M., Lütz, F. (2020) ‘The new Directive on Work-Life Balance: towards a new paradigm of family care and 
equality?’ 45 (3) European Law Review, 295.

76

Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

maternity  leave  is  part  of  (the  initial)  parental  leave.  One  could  say  that  both  parents  are  entitled  to 
parental  leave,  but  that  there  is  a  ‘mother’s  quota’,  which  forms  the  maternity  leave  (‘initial  parental 
leave just for the mother’). Similarly, there is an ‘initial parental leave just for the father’. How to define 
the different types of leave also plays a role for example in Albania and Slovakia as regards paternity 
and  parental  leave.  In  Turkey,  childcare  leave  would  correspond  to  parental  leave.  The  information 
provided within the national context by the national experts is therefore crucial to understand how the 
different forms of leave correspond to each other. However, given the aim of this comparative analysis, 
the  framework  of  the  following  sections  follows  the  relevant  EU  legislation.  After  an  introduction  to 
the general context (Section 4.1), pregnancy and maternity protection, as well as maternity leave, are 
considered (Sections 4.2 and 4.3), followed by adoption, parental leave, paternity leave, time off/care and 
surrogacy leave (Sections 4.4-4.8). In Section 4.9 flexible working-time arrangements are discussed, and 
the chapter ends with a short evaluation. 

4.1	 General	(legal)	context

The country reports show that in some countries, many surveys and specific research relating to work-life 
balance issues have been carried out (as for example in Czechia, in particular on the gender impact of the 
tax system or in Poland on the use of flexible working time). A significant amount of research mentioned 
by the national experts shows to what extent household and care responsibilities are unequally divided 
between men and women – the so-called ‘gender care gap’. 

The negative impact of parenthood is (much) greater on the labour market participation, careers, pay and 
pensions of women than men. This aspect was explicitly mentioned by the national experts of Albania, 
Austria,  Bulgaria,  Czechia,  Denmark,  Finland,  Germany,  Hungary,  Italy,  Liechtenstein,  Latvia, 
Lithuania, the Netherlands, Poland, Portugal, Serbia,275 Spain, Sweden276 and Turkey. 

This  tendency  is  particularly  marked  in  Croatia,  according  to  a  2017  study.277  More  recent  research 
shows  that  out  of  34  case  studies  in  which  employees  experienced  discrimination,  the  majority 
(70  %)  encountered  discrimination  or  negative  experiences  on  one  ground  associated  with  parenting 
responsibilities, and the remaining on two or three grounds. Almost an equal share of discrimination or 
negative experiences relate to pregnancy/planning/complications; using maternity or parental leave; or in 
relation to taking sick leave to look after a sick child. What is worrying is that 60 % of employees did not 
take any action to challenge the discrimination they experienced, and those who did so were not satisfied 
with their employer’s reaction.278 

275  The data shows that men work at paid jobs, both on weekdays and at weekends, for almost twice as long as women. On 

the other hand, women work in unpaid jobs longer than men, both on weekdays and at weekends: Statistical Office of the 
Republic of Serbia (2020), Women and men in the Republic of Serbia 2020, Belgrade, 70.

276  See Swedish Government Report (2017), Jämställt föräldraskap och goda uppväxtvillkor för barn – en ny modell för 

föräldraförsäkringen (Equal parenting and good conditions for children growing up – a new model for parental insurance), 
SOU 2017:101, available (in Swedish with English summary) at: https://www.regeringen.se/4afa97/contentassets/ 
01a6fba2043a4e58aeac32cf52bd3449/sou-2017_101_jamstallt-foraldraskap-och-goda-uppvaxtvillkor-for-barn.pdf. The 
gradual introduction, since 1955, of non-transferable days in the parental leave regulation has led to a more equal sharing 
of parental leave by couples, in addition to other factors such as education and higher earnings for mothers: see, among 
many others, Ma, L., Andersson, G., Duvander, A-Z., Evertsson, M. (2018), Forerunners and laggards in Sweden’s family change 
fathers’ uptake of parental leave, 1993-2010. Working Paper 2018:01, Stockholm University Linnaeus Center on Social 
Policy and Family Dynamics in Europe, SPaDE., available at: https://www.su.se/polopoly_fs/1.371819.1518171269!/menu/
standard/file/WP_2018_01.pdf.

277  The research was conducted within the framework of the EU-funded project managed by the Croatian Ombudsperson 

for Gender Equality ‘In pursuit of full equality between men and women: reconciliation between professional and family 
life’. See Klasnić, K. (2017), Utjecaj rodne podjele obiteljskih obveza i kućanskih poslova na profesionalni život zaposlenih žena 
(Impact of gender division of family and household obligations on professional life of employed women), Ombudsperson 
for Gender Equality, available at: http://rec.prs.hr/wp-content/uploads/2018/01/Brosura_prijelom_finalno_web.pdf.

278  Tkalčec, A., Kučer, L. (2020) Iskustva roditelja – diskriminacija na radnom mjestu (Parents’ experience – discrimination in 
the workplace), Zagreb, available at https://parentsatwork.eu/wp-content/uploads/2020/07/HR_Report-Case-Studies-
Parents@work_April2020-1.pdf. 

77

 
On  the  other  hand,  a  study  conducted  among  employers  (using  a  small  sample  of  28  employers  of 
all sizes (with 5 to 4 000 employees)) reveals that around two thirds of employers acknowledge that 
their  employees  who  are  parents  have  different  needs  compared  to  other  employees.  About  half  of 
all  employers  find  that  parenting  can  improve  certain  professional  skills  of  employees  (multi-tasking, 
problem-solving, etc). However, around 10 % of employers believe that employees who are parents cost 
the  company  more  than  other  employees,  and  around  16  %  believe  that  parenting  negatively  affects 
commitment to work. Almost half of employers find that employees who are parents are less flexible. 
Almost two thirds of the employers state that they either fully or mostly agree with the statement that 
managerial positions cannot be performed with flexible working hours or half of full working hours. Given 
the above findings, the author of the Croatian report remarks that it is surprising that 96 % of employers 
believe that mothers and fathers can balance full-time work with parenting responsibilities.279

In Estonia, the Family Law Act now stipulates that family members are obliged to provide maintenance 
for other family members who are unable to cope by themselves (children, disabled or elderly people).280 
The national expert explains that this legal obligation to the two generations above and below is difficult 
to implement in practice, due for example to changed family structures, the high employment rate and 
precarious work. The problems are serious in particular for middle-aged people (the so-called sandwich 
generation) who have to take care of their children and thus do not have enough resources to take on 
the additional burden of caring for old and sick relatives at the same time. Some publications highlight 
specifically the problems informal carers encounter when they care for people other than their children 
(e.g. older relatives). Women make up the majority of informal carers for older family members (parents 
and  parents-in-law).281  In  2020,  an  average  old  age  pension  was  EUR  507,282  which  does  not  cover 
monthly costs in residential care. There are also studies on the high financial costs private persons are 
faced with in relation to home care services, compared to public welfare expenditures, which are much 
lower.283

In  Greece,  qualitative  research  showed  that  the  relationship  between  work  and  family  life  has  been 
significantly  influenced  by  the  new  conditions  imposed  by  the  recent  economic  crisis.284  Seven  years 
after  the  advent  of  the  crisis  (2009-2016),  Greek  society  had  undergone  a  variety  of  changes  which 
are  reflected  in  income,  employment,  state  care  services  and  benefits  and  allowances  affecting  those 
working  in  both  the  public  and  the  private  sectors.  In  these  circumstances,  the  relationship  between 
work and family life, as shown by the project’s case studies, has suffered from the successive shocks of 
social transformations that took place during the crisis. This is especially true for female professionals. 
In addition, key dimensions of gender inequality which existed even before the recent economic crisis 
have also been prevalent. Reconciling work and family life has become extremely difficult, for women in 
particular, due to poor incomes and the lack of services offered by the state. The traditional role of women 
as mothers and housewives is thus reinforced. 

In Turkey, the Directorate of Women’s Status in the Ministry of Family, Employment and Social Services 
states  in  its  strategic  plan  that  the  lack  of  sufficient  preschool  education  and  care  services  impedes 

279  Kučer, L., Tkalčec, A. (2020) Stavovi poslodavaca o zaposlenim roditeljima (Employers’ views on employed parents), Zagreb, 
available at https://parentsatwork.eu/wp-content/uploads/2020/11/Izvještaj-stavovi-poslodavaca-studeni-2020.pdf. 
280  Article 96 of the Family Law Act stipulates that adult ascendants and descendants related in the first and second degree are 

required to provide maintenance (hereinafter person required to provide maintenance). Perekonnaseadus (Family Law Act), 
https://www.riigiteataja.ee/en/eli/507022018005/consolide.

281  Tarum, H., Kutsar, D. (2017), ‘Compulsory intergenerational family solidarity shaping choices between work and care: 

perceptions of informal female carers and local policymakers in Estonia’. In International Journal of Social Welfare, 27 (1), 
40−51.; Tarum, H., Kutsar, D. (2015), ‘The impact of the policy framework on the integration of informal carers into the 
labour market in Tartu, Estonia’. In: D. Kutsar & M. Kuronen (Eds.), Local welfare policy making in European cities (pp. 195-208). 
Switzerland: Springer International Publishing.

282  Source: http://andmebaas.stat.ee/Index.aspx?lang=et&DataSetCode=SK153.
283  Pall, K. (2019), ’Kas on õige panna vanemate hoolduskulud laste kanda?’ (’Is it OK to let children pay all long-term care 

costs for their parents?’), Eesti Ekspress, 02.10.2020,: https://ekspress.delfi.ee/arvamus/kas-on-oige-panna-vanemate-
hoolduskulud-laste-kanda?id=87490743.

284  Thanopoulou, M., Tsiganou, J. (2016), Gender in science without numbers – From academia to work-life balance, Main results of 

case studies, Εθνικό Κέντρο Κοινωνικών Ερευνών (National Centre for Social Research), Athens.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

the labour market participation of women. According to the national expert, Turkey must develop such 
services in the light of Article 12(2)(c) of the Convention on the Elimination of all Forms of Discrimination 
Against Women (CEDAW) and Article 27 of the European Social Charter (ESC). 

Surveys and figures on the complaints equality bodies receive on pregnancy and maternity discrimination 
show that such discrimination occurs. This aspect was highlighted specifically in the country reports for 
Belgium,285 Croatia, Cyprus,286 Denmark,287 Germany,288 Hungary, the Netherlands and the United 
Kingdom. In the United Kingdom, new and expectant mothers who are casual, zero-hours or agency 
workers were ‘less likely to feel confident about challenging discriminatory behaviour’, according to the 
Women and Equalities Committee.289

Some experts report unfavourable treatment of pregnant women who, at the end of a fixed-term contract, 
are not offered a new contract, probably due to their pregnancy and/or maternity leave (e.g. Croatia, 
Netherlands, North Macedonia and Norway). In Finland, young women are more often employed on 
fixed-term contracts than other groups. The availability of home care leave – a parental right to remain 
at home and take care of a child until the child is three on a flat-rate benefit – is often seen as a factor 
that has a negative impact on participation in the labour market by young women. In Serbia, women 
are sometimes questioned about their family plans during job interviews or are constantly on short-term 
contracts.290 In addition, case law shows that women returning to work after maternity leave are facing 
unfavourable treatment.

Some  surveys  show  that  reconciling  work  and  family  life  is  difficult  for  many  parents,  for  example  in 
Belgium.291 In Denmark, the Danish Association of Masters and PhDs conducted an analysis292 of the 
work-life balance of 4 870 of its members. The conclusion was that poor job satisfaction and stress are 
experienced by those who have poorer work-life balance opportunities. This is not the case in Iceland 
where the main conclusions of one survey were that employees did not find it difficult to balance work 
and family life, however many of them would like to reduce their number of working hours per week.293 In 
Luxembourg, 57 % of the participants in the 2019 ‘Quality of Work Index Luxembourg’ stated that they 
never or rarely had problems with work-life balance (3 % less than in 2018) and 35 % of the participants 

285  A study commissioned by the Belgian Institute for the Equality of Women and Men reported in 2017 that three out of four 

women workers have faced at least one form of discrimination, prejudice, unequal treatment and unpleasant treatment 
because of their pregnancy or maternity; 22 % of pregnant workers faced direct discrimination and 69 % suffered 
indirect discrimination: Institute for the Equality of Women and Men (2017), Grossesse au travail. Experience de candidates, 
d’employées et de travailleuses indépendantes en Belgique, (Pregnancy at work – Experiences of candidates, employees and self-
employed women in Belgium).

286  The equality body in Cyprus reported that 25 % of the complaints received between 2011 and 2016 concerned 

discrimination at work, including dismissal, due to pregnancy or maternity. The Committee on Gender Equality in 
Employment and Vocational Training (Ministry of Labour) reported that 50 % of the complaints received concerned 
unlawful dismissals of pregnant workers.

287  https://menneskeret.dk/sites/menneskeret.dk/files/06_juni_19/discrimination_against_parents.pdf.
288  However, nearly no cases are reported on the website of the Agency. See https://www.antidiskriminierungsstelle.de/DE/

ThemenUndForschung/Geschlecht/Gleichbehandlung_der_Geschlechter_im_Arbeitsleben_neu/Gleichbehandlung_
Geschlechter_Arbeitsleben_node.html.

289  House of Commons Women and Equalities Committee (2016), Pregnancy and maternity discrimination, available at: https://

publications.parliament.uk/pa/cm201617/cmselect/cmwomeq/90/90.pdf p. 20, para. 56.

290  Human Rights and Business Country Guide for Serbia, Belgrade Centre for Human Rights, the Danish Institute for Human 

Rights, 26, available at: http://www.bgcentar.org.rs/bgcentar/eng-lat/wp-content/uploads/2016/09/Country-Guide-Serbia-
FINAL-English-August-2016.pdf. 

291  A survey, from the Belgian Family League (Ligue des familles), found that eight out of ten parents have difficulty reconciling 
work and family life and one in four workers say they are on the verge of exhaustion. The most frequently expressed 
demand by parents is a collective reduction in working time. The Family League also proposes ‘conciliation leave,’ which 
could be taken in hours rather than in days: Family League (Ligue des familles) (2018), Comment adapter le monde du travail 
à la vie des parents? (How can the world of work be adapted to the lives of parents?), available in French at: https://www.
laligue.be/Files/media/495000/495841/fre/2018-10-25-enquete-travail-et-parentalite.pdf.

292  The report is available here: https://dm.dk/media/35344/derfor-er-work-life-balance-saa-vigtigt.pdf.
293  MSc Paper on Reconciliation of work and family life by Ragnheiður G. Eyjólfsdóttir; ‘Reconciliation of work and family life’, 

MSc thesis, Reykjavík University Course in Organisational Behaviour and Talent Management, 30 May 2013,  
https://skemman.is/bitstream/1946/16358/1/Ragnheidure-Lokaritgerð.pdf.

79

working full-time wanted a reduction in weekly working hours (53 % of women, 32 % of men). Telework 
was considered to be a way to reduce stress.

In the Netherlands, a large number of women work part-time. According to recent research, the Dutch 
system is characterised by three aspects that appear to uphold and strengthen one another: 1) the fact 
that women predominantly work in sectors with many part-time jobs and relatively low salaries; 2) the 
unequal distribution of work and care, with women carrying out most caring tasks and an infrastructure 
that puts women at a disadvantage in this respect; and 3) explicit ideas and social norms that influence 
the  choices  men  and  women  make  in  regard  to  education,  careers  and  care.294  A  report  published  in 
2018295  mentions  that  most  women  still  work  part-time,  but  in  recent  years  an  increase  can  be  seen 
in the number of hours women do paid work. For four out of ten women working part-time, the main 
reason is caring for children or grandchildren. Most fathers and mothers indicate that they would like to 
share the care for their children equally, but in practice this only happens in one out of eight families. 
If care tasks are divided unequally, the mother/woman almost always has a greater share of the tasks. 
There is a positive trend though in the sense that the number of men who do their share of housework 
and care tasks is slowly increasing. According to the Emancipation	Monitor 2020 published by Statistics 
Netherlands (CBS) and the Netherlands Institute for Social Research (SCP) the labour market participation 
of women increased more than that of men. In 2019 75.8 % of women not in education had paid work, 
compared to 86.3 % of men. However, women still carried out most care tasks: in one out of 6 families 
with children under 18 the care tasks were equally divided between men and women.296

In Austria, the incidence of part-time work is high as well and this contributes to the high gender pay 
gap and gender pension gap.297 In Luxembourg, women represent 46 % of the labour force, whereas 
they  are  81.6  %  of  the  labour  force  who  are  working  part  time  (Eurostat  2020).298  In  Liechtenstein 
and Norway many more women than men also work part-time if they have family responsibilities. In 
contrast, in Czechia, Montenegro and Poland for example, not many workers work part-time; if they 
do, they mostly have family responsibilities. In Portugal, most men and women work full-time: in 2018, 
part-time contracts represented only 10.5 % of the total number of employment contracts, and 87.7 % of 
the women worked full-time compared with 91.2 % of the men.299 Involuntary part-time work is frequent 
in Spain and is often not related to caregiving or family responsibilities, but rather due to precariousness 
in the labour market, according to the national expert.

Some national experts also report that family-friendly measures such as leave are used much more by 
women than men (e.g. Croatia, Finland, Germany, Spain and the United Kingdom). For example, in 
Spain, from 2007 to 2017, parental leave was used consistently at a rate of over 92 % by women.300 
In the case of leave for care of other relatives, the rate of use by women was over 83 % for the same 
period.301  Flexible  working  time  is  more  common  among  fathers  than  mothers  in  Finland.302  In  this 
country, after the long period of home care leave, which is mostly taken by mothers, there is a right for 

294  McKinsey & Company (2018), Het potentieel pakken (Address the potential), available at: https://www.mckinsey.com/~/

media/McKinsey/Featured%20Insights/Europe/The%20power%20of%20parity%20Advancing%20gender%20equality%20
in%20the%20Dutch%20labor%20market/MGI-Power-of-Parity-Nederland-September-2018-DUTCH.ashx.

295  SCP (2018), Emancipatiemonitor 2018, December 2018. Available at: https://digitaal.scp.nl/emancipatiemonitor2018/

emancipatie-weer-in-de-lift/.

296  CBS and SCP (2020), Emancipatiemonitor 2020, December 2020. Available at: https://digitaal.scp.nl/emancipatiemonitor2020/. 
297  The rate of part-time female workers between the ages of 15 and 64 was 68.3% in 2020. This is especially prevalent in 

rural areas: Statistik Austria (Statistics Austria), https://www.statistik.at/web_de/statistiken/menschen_und_gesellschaft/
soziales/gender-statistik/erwerbstaetigkeit/index.html.

298  Eurostat (2020) ‘Full-time and part-time employment by sex, age and occupation (1000)’ (fourth quarter of 2019). Available 

at: https://appsso.eurostat.ec.europa.eu/nui/submitViewTableAction.do.

299  CITE 2018 Report, p. 79.
300  Excedencia por cuidado de hijas/os (parental leave), http://www.inmujer.es/estadisticasweb/6_Conciliacion/6_2_

ExcedenciasPermisosyReduccionesdeJornada/w121.xls; Excedencia por cuidado.

301  Excedencia por cuidado de familiares (leave for taking care of relatives), http://www.inmujer.es/estadisticasweb/6_

Conciliacion/6_2_ExcedenciasPermisosyReduccionesdeJornada/w120.xls.

302  Salmi, M. and Lammi-Taskula, J., Joustoa, J. (2011), ’Joustoa työn vai perheen hyväksi?’ In Pietikäinen, P. (ed.) Työstä, jousta, 

jaksa: Työn ja hyvinvoinnin tulevaisuus (Grind, be flexible, endure: The future of work and welfare), Gaudeamus, Helsinki, 
2011, pp. 155-183.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

the individual to return to their own job. The national expert signals that this might be an incentive for 
discrimination as it may cause problems for the employer.

In Germany, the complexity of the care system has been criticised.303 A recent study shows that mothers 
who take parental leave for more than 12 months see their wages drop by 10 % and, if they make use 
of  flexible  working  times,  their  wages  decrease  by  16  %  after  their  parental  leave.304  In  Czechia  and 
Slovakia, research shows that the parental leave for three years with a parental allowance has negative 
consequences for the women who take such a long period of leave. In Lithuania, the ‘children’s money’ 
allowance granted upon request to parents without any precondition tends to reduce the willingness of 
women to return to work. Some experts also point at the role of traditional stereotypes in hampering a 
more equal sharing of work and care between men and women (e.g. Germany, Italy, Lithuania and 
Poland). 

In some countries, the policies and legislation aim to boost birth rates (for example, in Croatia, France 
and Serbia). In Latvia, there are also political discussions about the need to raise birth rates, but these 
are not linked to work-life balance issues.

The lack of services and costs related to (childcare) services also impedes a more gender balanced division 
of work and care, in particular for lower or medium income groups (e.g. Italy). In southern and western 
German states, there is still a lack of tens of thousands of kindergarten places. Research showed that in 
Austria employees with small children consider that the conditions, effects and availability of childcare 
at their workplace is an important factor in their employment decisions. This survey also revealed that 
employees with children under 12 years of age prefer flexible working time arrangements.305

There are also more positive trends. After the introduction of a parental allowance, the take-up of parental 
leave by fathers in Germany increased from 3 % to 37 %.306 In Luxembourg, the number of fathers 
who took parental leave after an income-related parental leave pay307 was introduced in 2016 increased 
dramatically by 190 %. Between 2016 and 2017, the number of beneficiaries increased significantly as 
well, especially regarding fathers (+ 28.8 % for women, + 215.9 % for men). In 2016, mothers represented 
75.3 % and fathers 24.7 % of the beneficiaries. The number of parents who benefited from parental leave 
increased again by 16.3 % between 2017 and 2018. Fathers, in particular, have shown an interest in the 
new parental leave. In 2018, they represented 49 % of the beneficiaries versus 25 % in 2016. They opted 
as much for the full-time leave as for the half-time parental leave. However, the flexible leave is less 
favoured by men, representing 43 % of all the parental leave taken by fathers.308 In 2018, the number of 
beneficiaries is close to equality between women (4 875) and men (4 721). 

In Poland, currently a quarter of the workers taking all kinds of childcare-related leave are fathers, but 
still only about 1 % of parental leave is taken by men.309 In Portugal, a survey published in 2017 shows 
a growing use of paternity leave and parental leave by fathers and the extensive use of childcare facilities 

303  German Federal Government (2017), Second gender equality report, Berlin, p. 113.
304  Lott, Y. & Eulgem, L. (2019), ‘Lohnnachteile durch Mutterschaft. Helfen flexible Arbeitszeiten?’ (Wage disadvantages due to 

motherhood. Do flexible working times help?) in WSI Report No. 49, https://www.boeckler.de/pdf/p_wsi_report_49_2019.pdf. 

305  L&R Social Research (2014), Vereinbarkeit von Beruf und Kinderbetreuung – betriebliche Rahmenbedingungen aus Sicht 

berufstätiger Eltern (Reconciliation of work and childcare – operational framework from the perspective of working parents) 
available at: https://www.femtech.at/sites/default/files/Studie_Vereinbarkeit_Beruf_Familie_2014.pdf.

306  Samtleben, C., Schäper, C. & Wrohlich, K. (2019), ‘Elterngeld und Elterngeld Plus: Nutzung durch Väter gestiegen, Aufteilung 
zwischen Müttern und Vätern aber noch sehr ungleich’, in DIW Wochenbericht No. 35, https://www.diw.de/documents/
publikationen/73/diw_01.c.673396.de/19-35-1.pdf. However, the length of the parental leave taken by mothers is usually 
much longer (10 to 12 months) than the leave fathers take (72 % take parental leave for two months).

307  The lower limit is EUR 1 922.96 per month, equal to the social minimum wage for non-qualified workers, and the upper 

limit is EUR 3 204.93 per month, equal to the social minimum wage increased by two thirds.

308  Luxembourg, General Inspectorate of Social Security (IGSS) (2020) Rapport Général sur la Sécurité Sociale 2019 (General 

Report on Social Security 2019), p. 180.

309  https://www.gov.pl/web/rodzina/wiadomosci-polityka-rodzinna; https://www.gov.pl/web/rodzina/rosnie-liczba-urlopow-
rodzicielskich; https://www.gov.pl/web/rodzina/ojcowie-coraz-chetniej-korzystaja-z-urlopow-rodzicielskich\; https://www.
gov.pl/web/rodzina/urlopy-dla-rodzicow-2; https://www.gov.pl/web/rodzina/urlopy-dla-rodzicow-w-2019-najnowsze-dane. 

81

for children prior to school age.310 In Finland, legislation on a reform of the family leave regulations was 
passed in December 2021.311 The Government’s aim was a gender-neutral family leave system, in which 
the benefits during leave would no longer be different for mothers and fathers, and suited to all forms 
of family. It would introduce an equal quota of non-transferable family leave to mothers and fathers, by 
increasing the time allocated to fathers but without reducing the time allotted to mothers. Part of the 
leave would remain non-transferable.312 The new family leaves consist of pregnancy leave and benefits 
of circa 1.6 months, which is shorter than the former maternity leave, and of parental leave of circa 6.4 
months for each parent, or in case of single parent families, 12.8 months. The non-transferable part of 
the parental leave is longer than under present law. The amendment is expected to come into force on 
1 August 2022. In Iceland, the new maternity/paternity and parental leave Act prolongs the combined 
leave for both parents from 10 months to 12 months. Each parent is entitled to six months’ leave and 
can assign six weeks of their leave to the other parent. The new act also provides that each parent is 
entitled  to  two  months’  leave  in  the  event  of  a  stillbirth  or  miscarriage  after  18  weeks  of  pregnancy. 
Both parents who are active on the labour market and those who are not receive grants. In addition, one 
of the aims of the new Gender Equality Act313 is to enable parents to coordinate their job obligations 
with their duties towards their family. Employers have the duty to make the necessary arrangements to 
enable their employees to reconcile their working obligations with family life, independent of their sex. 
These measures entail increased flexibility in organising work and working hours and to take into account 
the  circumstances  of  the  family,  the  needs  of  the  employer/workplace,  including  enabling  employees 
to return to their work after maternity/paternity leave or leave due to pressing and unavoidable family 
circumstances. 

A Royal Decree in Spain introduced a ‘birth-related’ leave in 2019 as an individual, non-transferable right, 
as well as increased possibilities for flexible working time in order to facilitate work-life balance. This 
legislation also seeks to combat sex discrimination in the labour market. 

A study in Czechia highlighted to what extent public funding for pre-school places pays off. In Montenegro, 
there  is  a  large  network  of  public  pre-school  facilities  with  a  high  coverage.  In  Italy,  the  Ministry  of 
Economy and Finance offers free childcare to workers. In Sweden, in addition to the right to work shorter 
hours  for  employees  with  small  children,  subsidised  day-care  facilities  for  children  are  available  for 
working parents. 

While  in  some  countries  the  legislation  on  work-life  balance  complies  with  the  EU  requirements,  the 
effectiveness  of  national  law  is  hampered  by  a  fear  of  exercising  rights  to  leave,  in  particular  when 
workers have precarious jobs, which is the case for many young workers. The gender pay gap and the fact 
that men/fathers are the main breadwinners also play a role in this respect (e.g. in Italy).

As regards legislation, in most countries, the Labour Code contains legal provisions relevant for work-life 
balance issues, in addition to other Acts. The Belgian system is particularly complex, as new measures 
have been added to old ones without harmonising the regulations with different objectives (redistribution 
of work or reconciliation of work and private life). 

The  right  to  an  adequate  reconciliation  between  work  and  family  life  is  granted  in  the  Portuguese 
Constitution as a fundamental right for workers.314 

310  CITE (Comissão para a Igualdade no Trabalho e no Emprego) Report 2017, pp. 63-66.
311  Government Bill HE 129/2021 on an amendment of Sickness Insurance Act, Employment Contracts Act and Act on Early 

education.

312  Ministry of Social Affairs and Health (2020) Perhevapaauudistus tähtää perheiden hyvinvointiin ja tasa-arvon lisäämiseen 

(The family leave reform aims at family welfare and enhanced equality), press release, 5 February 2020, available at: https://
valtioneuvosto.fi/artikkeli/-/asset_publisher/1271139/perhevapaauudistus-tahtaa-perheiden-hyvinvointiin-ja-tasa-arvon-
lisaamiseen.
Iceland, No. 150/2020.

313 
314  See Articles 59(1)(b) and 67(h).

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

Sometimes, specific Acts apply to for example the protection of motherhood and paternity, as is the case 
in Cyprus; or entitlements to parental leave, childcare leave and benefits (e.g. Croatia, Denmark and 
Ireland); or on remote working (e.g. France).

The Lithuanian Labour Code explicitly requires that employees’ conduct and their actions at work shall 
be assessed by their employers with a view to practically and effectively implementing the principle of 
work-life balance.

In  2018,  the  European  network  of  legal  experts  in  gender  equality  and  non-discrimination  published 
a  thematic  report  on  Family	 leave:	 enforcement	 of	 the	 protection	 against	 dismissal	 and	 unfavourable	
treatment.315 This report addresses the protection against discrimination and unfavourable treatment as 
well as dismissal due to the take-up of family-related leave – pregnancy and maternity leave, parental 
and adoption leave, paternity leave and carers’ leave – at national level in the 28 Member States and 
three EEA countries (Iceland, Liechtenstein and Norway). It also provides detailed information on access 
to justice and enforcement issues.

4.2	 Pregnancy	and	maternity	protection316

Discrimination for reasons of pregnancy is considered as direct	discrimination under EU law317 and therefore 
also in the Member States. Any less favourable treatment of a woman related to pregnancy or maternity 
leave is included in the prohibition of discrimination (Article 2(2)(c) of Recast Directive 2006/54/EC).

At the same time, protection for reasons of pregnancy and maternity justifies different treatment for the 
women concerned. Thus, special rights and specific protection related to pregnancy and maternity, such 
as  maternity  leave,  do  not  amount  to  discrimination  against  men  (Directive  92/85/EEC  and  Article  28 
of  the  Recast  Directive  2006/54/EC).  In  CJEU  case  law,  when  specific  protection  does  not  apply,  the 
principle  of  equal  treatment  between  men  and  women  can  be  applied318  or  the  general  principle  of 
equal  treatment.319  While  in  the  past  rights  protecting  women  in  relation  to  pregnancy  and  maternity 
have been seen as an exception to the principle of equal treatment, nowadays they are considered as a 
means to ensure the implementation of the principle of equal treatment for men and women regarding 
both access to employment and working conditions. However, it might be questioned how far protective 
measures should go, in particular in view of a more balanced division of work and family life between 
men and women when a very long maternity leave and/or many protective measures exist for women 
for a long period of time. If women are entitled to an additional period of maternity leave followed by 
parental leave or a home care leave, a long period of leave might hamper their careers as, for example, 
the Irish, Finnish and Lithuanian experts pointed out. The unequal uptake of leave might be reinforced 
when men are lacking or entitled only to a very short paternity leave and/or leave is unpaid. It is submitted 
that  a  very  long  maternity  leave  might  hamper  a  gender-balanced  division  of  family  responsibilities 
and opportunities on the labour market. A combination of a maternity leave that is not excessively long, 
paternity leave, an individual right to parental leave, care leave and childcare leave might prevent such 
drawbacks.320

315  Masselot, A. (2018), Family leave: enforcement of the protection against dismissal and unfavourable treatment, European 

Commission, available at: https://www.equalitylaw.eu/publications/thematic-reports.

316  Mulder, J. (2018) ‘Promoting substantive gender equality through the law on pregnancy discrimination, maternity and 

parental leave’, European equality law review 2018/1, pp. 39-49, available at: https://www.equalitylaw.eu/downloads/4639-
european-equality-law-review-1-2018-pdf-1-086-kb. 

317  See, for example, Cases C-438/99 Jiménez Melgar and C-109/00 Tele Danmark.
318  See the case of an IVF treatment when Directive 92/85/EEC did not apply: CJEU, Judgment of 26 February 2008, Sabine 

Mayr v Bäckerei und Konditorei Gerhard FlöcknerOHG, C-506/06, ECLI:EU:C:2008:119.

319  See, for example, CJEU, Judgment of 16 September 2010, Zoi Chatzi v Ipourgos Ikonomikon, C-149/10, ECLI:EU:C:2010:407.
320  See on this issue: De la Corte-Rodriguez, M. (2019) EU Law on maternity and other child-related leaves. Impact on gender 

equality. Kluwer Law International, the Netherlands.

83

In order to strengthen the protection of pregnant women and women who have recently given birth, the 
Pregnant  Workers  Directive  92/85/EEC  was  adopted  in  1992.  The  most  important  provisions  concern 
a period of maternity leave of at least 14 weeks (Article 8). Women are entitled to the payment of an 
adequate allowance during pregnancy and maternity leave (Article 11). This allowance is deemed to be 
adequate if it guarantees an income at least equivalent to that which the worker concerned would receive 
in case of illness (Article 11(3)). Another important provision relates to protection against dismissal from 
the beginning of the pregnancy until the end of the maternity leave (Article 10). Apart from leave and 
employment protection, the Directive also provides for health and safety protection for pregnant women 
or women who are breastfeeding. If there is a risk to health and safety or an effect on the pregnancy or 
breastfeeding, as established on the basis of detailed guidelines, the employer must take the necessary 
steps, like temporarily adjusting the working conditions, moving the worker to another job or, if there is no 
other solution, granting the worker temporary leave. At national level, the minimum requirements of the 
Directives are generally met and national (case) law offers more protection and extensive rights. 

4.2.1	 Definitions	in	national	law	and	obligation	to	inform	employer

According to Article 1(1) of the Pregnant Workers Directive 92/85/EEC, the directive applies to pregnant 
workers, workers who have recently given birth or are breastfeeding. These three groups are defined in 
Article 2:

‘(a) pregnant worker shall mean a pregnant worker who informs her employer of her condition, in 
accordance with national legislation and/or national practice;
(b) worker who has recently given birth shall mean a worker who has recently given birth within 
the meaning of national legislation and/or national practice and who informs her employer of her 
condition, in accordance with that legislation and/or practice;
(c) worker who is breastfeeding shall mean a worker who is breastfeeding within the meaning of 
national  legislation  and/or  national  practice  and  who  informs  her  employer  of  her  condition,  in 
accordance with that legislation and/or practice.’

In some countries, the concepts of pregnant worker, worker who has recently given birth and a worker who 
is breastfeeding are defined, sometimes in the same, and sometimes in different Acts (Albania, Bulgaria, 
Croatia, Germany,321 Greece,322 Ireland, Lithuania, Luxembourg,323 Malta, Montenegro, Portugal, 
Slovakia, Slovenia, Turkey). In Bulgarian legislation, equal protection is granted to female workers 
and employees who are at an advanced stage of in-vitro fertilisation treatment. Their rights were made 
consistent with those of pregnant female workers and employees and with those who are breastfeeding.

In  many  countries,  no  definitions  of  a  pregnant  worker,  a  worker  who  has  recently  given  birth  or  a 
breastfeeding worker exist in national law (Austria,  Cyprus,324 Czechia,  Denmark, Finland, France, 
Iceland, Italy, Latvia,325 Liechtenstein, Montenegro, Netherlands, Poland, Serbia, Spain, Sweden, 
United Kingdom). 

A legal obligation to inform the employer (often in order to benefit from pregnancy protection and/or before 
maternity leave) is frequently found (Albania, Bulgaria, Cyprus, Denmark, Estonia, Finland, France, 

321  As transgender people can claim legal recognition of their new gender status without surgery, ‘pregnant men’ may occur 

(although there are going to be fierce discussions about the question of whether they, after giving birth, can be recognised 
as the mother or the father on the birth certificate). Moreover, since intersex* children are no longer to be assigned one of 
two genders at birth, people without a female or male gender status or with a ‘diverse’ status may become pregnant in the 
future. The law itself speaks of pregnant and breastfeeding ‘persons’.

322  The definitions specify: ‘provided that this is required for taking a positive measure in her favour’, i.e. for example maternity leave.
323  A woman who has recently given birth is not defined, but a premature birth is.
324  The equality body took a more restricted approach than required under EU law in case number 27/2017. 
325  However, the period relevant for pregnancy and maternity protection is defined in Article 37(7) of the Labour Law.

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Germany,  Hungary,326  Iceland,  Ireland,  Italy,  Lithuania,  Luxembourg,327  Malta,  Montenegro, 
Netherlands,  North  Macedonia,  Portugal,328  Slovenia,  Turkey,  United  Kingdom).  However,  there 
is no such (formal) obligation in Austria,329 Belgium,330 Czechia, Greece,331 (except in case of positive 
measures), Latvia,332 Liechtenstein, Poland, Serbia, Slovakia, Spain or Sweden. In order to benefit 
from protective measures, pregnancy has most often to be proved, for example by a medical certificate. 
However, in Norway, the protection of pregnant employees applies to any employee who is pregnant or 
is breastfeeding, not only to employees who have informed their employer about their condition. 

4.2.2	 Protective	measures

The aim of the Pregnant Workers Directive 92/85/EEC is to encourage improvements in the health and 
safety at work of pregnant workers and workers who have recently given birth or who are breastfeeding 
(Article 1). Articles 4-6 of this Directive require specific measures from employers in order to prevent the 
workers to which the directive applies from being exposed to dangerous substances, processes or working 
conditions,  which  are  specified  in  non-exhaustive  lists  in  Annexes  to  the  directive.333  Employers  must 
assess the risks and decide what measures should be taken. These may include temporarily adjusting the 
working conditions and/or the working hours of the worker concerned. If this is not possible, the worker 
should be moved to another job. Pregnant workers, workers who have recently given birth and workers 
who are breastfeeding cannot be obliged to perform night work during a certain period to be determined 
at national level. These workers must then be able to work during daytime or – if such a transfer is not 
possible – have a longer period of leave (Article 7). Employment rights and maintenance of a payment to, 
and/or entitlement to an adequate allowance must be ensured (Article 11(1)).

These  provisions  are  implemented  in  Albania,  Austria,  Belgium,  Bulgaria,334  Croatia,  Cyprus, 
Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, 
Latvia,  Liechtenstein,  Lithuania,  Luxembourg,335  Malta,  the  Netherlands,  North  Macedonia, 
Poland, Portugal, Serbia, Slovenia, Spain,336 Sweden, Turkey and the United Kingdom. The ban on 

326 

If the notification of pregnancy is given following the delivery of a letter of dismissal, the dismissal may be withdrawn by 
the employer within 15 days following the notification.

327  This obligation also applies to a worker who is breastfeeding. In a ruling of 19 December 2019, the Court of Appeal stated 
that ‘in the event that a pregnant employee is fired before she informed the employer of the pregnancy, she must produce 
a medical certificate to her employer within 8 days to annul the dismissal’, Court of Appeal, 19 December 2019, No. 127/19. 
Comments on this judgment were made in InfosJuridiques No. 1-2020 p. 6, available at: https://www.csl.lu/fr/publications-
newsletters/newsletters/infosjuridiques/2020.
In order to have access to the relevant protection rules. However, these rules are applicable not only if the worker has 
formally informed the employer of her condition but also, regardless of that formal communication, whenever the 
employer has direct knowledge of the worker’s condition (Article 36(2) of the Labour Code).

328 

329  However, maternity protections (such as protection against dismissal) depend upon notification of the employer. 

Nonetheless, negative consequences of a failure to inform the employer can be reversed by informing the employer as 
soon as possible after the fact (e.g., after a dismissal).

330  However, in the event of a dispute, it will be up to the worker to prove that the employer was informed. Thus, the visible 

331 

nature of the pregnancy is sufficient to provide the employer with information.
If an employer dismisses a pregnant worker without being aware of her condition, once informed of the pregnancy the 
employer must adopt measures in order to deal with the nullity of the dismissal of the pregnant worker (i.e. reinstatement): 
SCPC (Civil Section) No. 954/2018.

332  There is formal obligation to inform the employer provided by the law, however, according to the case-law in case of 

discrimination the main issue is if the employer knew about the pregnancy in fact.

333  Annex 1 of Directive 92/85/EEC was amended by Directive 2014/27/EU of the European Parliament and of the Council of 

26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the 
European Parliament and of the Council, in order to align them to Regulation (EC) No 1272/2008 on classification, labelling 
and packaging of substances and mixtures, OJ 2014, L 65/1.

334  These provisions also apply to a woman at an advanced state of in-vitro fertilisation.
335  The prohibition of night work applies from 10 pm until 6 am.
336  The Spanish Supreme Court transferred to the employer the burden of proof that the work undertaken by the worker was 
compatible with breastfeeding after the CJEU C-531/15 Otero Ramos and C-41/17 Gonzalez Castro cases: Judgment of the 
Supreme Court of 26 June 2018, appeal number 1398/16, ECLI: ES:TS:2018:2651: www.poderjudicial.es/search/contenidos.
action?action=contentpdf&databasematch=TS&reference=8454467&statsQueryId=106305728&calledfrom=searchresults
&links=&optimize=20180719&publicinterface=true.

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employing pregnant women and women who are breastfeeding for prohibited work is absolute in Poland, 
even if the woman concerned does agree to the work.

In Norway, the protective measures mentioned in Articles 4-7 of Directive 92/85/EEC are not explicitly 
implemented in national law, but the legislation provides broad protection against health hazards for all 
employees in relation to the rules on the general working environment, working hours, the information 
and  consultation  obligation  and  the  entitlement  to  leave.  Pregnant  workers  are  protected  under  the 
general provisions. The same is true in Montenegro, where protective measures have to be taken by the 
employer to protect the health of a pregnant worker and her child. The scope of the specific protection of 
pregnant and breastfeeding women and mothers until the completion of nine months after confinement 
is broad in Slovakia. 

Interestingly, in Germany, in a paradigm shift, Section 13 of the new Maternity Protection Act provides for 
a hierarchical range of employers’ duties to guarantee protection and safety for pregnant or breastfeeding 
employees. The first and primary task is the substantial reshaping of the work environment.337 Only when 
the required level of safety cannot be reached by such a reshaping or when the reshaping would require 
a  disproportionate  effort  can  the  employer  require  a  change  of  the  specific  workplace.  If  safety  can 
neither be guaranteed by reshaping the work environment nor by a change of workplace, the employer 
is  not  allowed  to  employ  the  pregnant  or  breastfeeding  employee  during  the  period  of  pregnancy  or 
breastfeeding (generally covering the first year after the birth of the child).338 The national expert considers 
that by qualifying the reshaping of the work environment as a priority and the prohibition of work as a last 
resort, pregnancy and breastfeeding might cease to have the status of special obstacles to a successful 
working  life  and  may  become  part  of  a  comprehensive  concept  of  occupational  safety  (influenced  by 
EU  law  requirements).  A  newly  established  Commission  for  Maternity  Protection  will  further  develop 
guidelines concerning risk assessment, technical safety, occupational medicine and hygiene.

The situation in the countries under review is diverse as regards the prohibition of night work for pregnant 
workers, workers who have recently given birth and breastfeeding workers. Article 7 of Directive 92/85/EEC 
requires the Member States to take the necessary measures to ensure that these workers are not obliged 
to perform night work during their pregnancy and for a period following childbirth, to be determined at 
national level. This period can be quite long. For example, in Bulgaria, night work is forbidden for pregnant 
workers and workers in an advanced stage of in-vitro fertilisation treatment; this also applies to mothers 
with  children  up  to  six  years  old,  and  mothers  who  care  for  children  with  disabilities,  notwithstanding 
their age, unless their explicit written consent is given. Fathers are not protected under this provision, 
even if they are lone parents, which could be regarded as direct sex discrimination. In contrast, in Italy 
the prohibition of night work applies not only to mothers, but also to fathers.339 In Hungary, night work 
is prohibited for women during pregnancy until their child(ren) reaches three years old, also for single 
parents (fathers) until their child(ren) reaches three year old – even in cases where the employee would 
consent  to  perform  night  work.340  Such  a  long  period  can  be  detrimental  for  employees  who  are  not 
offered daytime work during the prohibited period of night work. The option of daytime work or leave from 
work must be offered to workers according to Article 7(2) of Directive 92/85/EEC. 

In Montenegro, it is not only women during pregnancy and women who have children under three years 
of age who may not work longer than the full-time hours or overnight. Exceptionally, an employed woman 
who has a child older than two years of age may work at night, but only if she consents to such work 
in writing. In addition, parents with a child with severe disabilities and single parents who have a child 

337  Although not discussed in the legislative process, there are some considerable links to the concept of reasonable 

accommodation.

338  Most of the regulations entered into force on 1 January 2018.
339  Until the child is three years old. The dismissal of a working mother of children aged under three years who refused to be 

employed in night work was considered null and void by the Italian Court of Cassation, as the employer had not proved 
that there was no day job where she could have been employed: case No. 23807 of 14 November 2011.

340  Hungary, Act I of 2012 on the Labour Code (2012. évi I. törvény a munka törvénykönyvéről), 6 January 2012, Article 113(1) 

Points (a)-(b), (3).

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

under seven years of age may not work longer than the full-time hours or at night, unless they give their 
written consent.

In Denmark, Finland, Norway, Sweden341 and the United Kingdom there is no specific legal prohibition 
of night work for pregnant (and/or breastfeeding) women. However, if health risks exist, the employer 
must provide daytime work and/or take other measures. In Albania, there is a prohibition of night work for 
pregnant women and women who have recently given birth until their child reaches the age of one year, if 
this would be harmful to the health and safety of the woman and/or the child. A similar provision applies 
to breastfeeding women for a period of 63 days after birth. In Estonia, a pregnant and/or breastfeeding 
women  can  refuse  night  work  and  underground  mining  work.  In  Iceland,  it  is  prohibited  to  oblige  an 
employee who is pregnant to work at night. This also applies for the six months after she gives birth, if it 
is necessary for her health and safety and is confirmed with a medical certificate.

The situation is slightly different in Czechia, where night work is not generally prohibited for pregnant 
women, but there is an obligation for the employer to transfer a pregnant or breastfeeding woman, or 
a mother until nine months after delivery, from night work to day work, if she requests this.342 A similar 
situation exists in Slovakia. On the contrary in Poland, the prohibition of night work has an absolute 
character, which means that a pregnant woman cannot perform night work regardless of whether such 
work poses any risk to her health or not, or whether there is any objective reason why she should not 
perform night work. The consent of the pregnant employee is irrelevant. 

During the COVID-19 pandemic, additional measures to protect pregnant women in the workplace have to 
be observed in Austria, including enhanced hygiene and distancing measures.343 Under certain conditions, 
pregnant women can take protective leave due to the COVID-19 pandemic (especially if they are not able 
to work from home).344

4.2.3	 Prohibition	of	dismissal

Article 10(1) prohibits dismissal of workers from the beginning of their pregnancy until the end of their 
maternity leave (as stipulated in Article 8, thus 14 weeks), save in exceptional cases not connected to 
pregnancy or maternity. If an employer dismisses an employee during the period of her pregnancy or 
during maternity leave, they must substantiate the grounds for dismissal in writing (Article 10(2)). The 
following table gives an overview of how Article 10 is implemented in the 36 countries under review.

Table 1 Protection against dismissal during pregnancy and maternity leave

Albania

Austria

Belgium

Bulgaria

Yes, except in exceptional cases not linked to pregnancy or childbirth.

Yes. Employers can only terminate a contract of a pregnant worker for a number of special 
reasons345 after having informed the works council and having obtained subsequent consent 
from the labour courts. 

Yes.

Yes, except on certain grounds (Article 333 paragraph 5 & 6 and 338 of the Labour Code).

341  There is no prohibition against night work for pregnant women. However, a pregnant employee or an employee who 

has recently given birth may not perform night work if she provides medical certificates stating that such work would be 
detrimental to her health or safety: Swedish Work Environment Statute AFS 2007: 5, Section 9A.

342  Czechia, Section 41 of the Labour Code.
343  Arbeitsinspektion (Austrian Labour inspectorate), https://www.arbeitsinspektion.gv.at/Gesundheit_im_Betrieb/

Gesundheit_im_Betrieb_1/Schwangere_Arbeitnehmerinnen.html. 

344  Paragraph 3a of the Maternity Protection Act.
345  For example, a failure to attend work without any justification for a significant period, physical or severe verbal assaults 

against the employer or their family, theft, fraud, or breaches of trust that would also qualify as a criminal offence (such as 
fraud or serious theft): Paragraph 12 of the Maternity Protection Act.

87

Croatia

Cyprus

Czechia

Denmark

Estonia

Finland

France

Germany

Greece

Hungary

Iceland

Ireland

Italy

Latvia

Yes. The protection extends for 15 days after the end of maternity leave. Exceptionally, 
dismissal due to business reasons in the procedure of winding up (liquidation) of a company 
is allowed even during maternity leave (Article 34(4) Labour Act). However, application of this 
exception is practically impossible, because the notice period cannot begin and is suspended 
during pregnancy and the exercise of any right related to maternity or parenthood (Article 
121(2) Labour Act). The same applies in case of employer’s insolvency (Article 191(3) 
Insolvency Act), although in practice, dismissal due to an employer’s insolvency may have 
an immediate effect, where the insolvency procedure is opened and closed on the same day 
(when the employer/insolvency debtor has no assets).

Yes. The protection extends for five months after the end of the maternity leave.

Yes.

Yes.

Yes.

Yes.

Yes. The protection extends for ten weeks after birth.346

Yes (except under exceptional circumstances not related to pregnancy). The protection 
extends for four months after childbirth.

Yes, for the whole protected period (i.e. during pregnancy and 18 months after childbirth or 
during a longer absence due to illness related to pregnancy or childbirth).347

Yes, a dismissal with notice is prohibited during pregnancy, maternity leave, parental leave 
and IVF treatment (for six months), with a few exceptions. Fathers are only protected from 
dismissal during parental leave if they are the sole carers of their child(ren) and the mother 
is not available.

Yes.

Yes. 

Yes. Protection is granted for a period of 12 months following the date of confinement. 

Yes.348 An employee on maternity leave may only be dismissed in the case of the liquidation 
of the employer’s company.

Liechtenstein

Lithuania

Yes.

Yes.

Luxembourg

Yes.349

Malta

Montenegro

Netherlands

Yes. By Regulation 12 of the Protection of Maternity (Employment) Regulations.

Yes.350

Yes, from the beginning of the pregnancy, during maternity leave and for six weeks after 
resuming work after maternity leave or after a period of illness caused by pregnancy or 
childbirth. 

North Macedonia Yes.

Norway

Yes. 

346  Article 81 of the new Act No. 2019-828 of 6 August 2019 on the transformation of the civil service, amending Article 6 
of Act No. 83-634 of 13 July 1983 on the rights and obligations of civil servants, adds pregnancy as a specific ground of 
discrimination for public sector employees.

347  After the cut-off date (01.01.2021), the protection was extended to fathers as well for the first six months after childbirth by 

Art. 48(4) Act 4808/2021.

348  The employer has the right to give notice of dismissal in case of temporary incapacity to work for more than six months 

(Article 101, para. 1, Clause 11) and repeated periods of incapacity. According to the national expert, this provision is 
contrary to the CJEU Judgment of 30 June 1998, Mary Brown and Rentokil Limited, C-394/96, ECLI:EU:C:1998:331. 

349  The protection also applies also to a pregnant woman working under a traineeship contract, according to the 

Constitutional Court: Case Law No. 00142 of 14 December 2018, Memorial A No. 1149 of 19 December 2018. Available 
at: http://legilux.public.lu/eli/etat/leg/memorial/2018/a1149; Infos Juridiques No. 1/2019 of 30 January 2019. Available at: 
https://www.csl.lu/single_newsletter/63ffd96c4a. However, on the dismissal at the end of the maternity leave of a worker 
with a fixed-term contract in relation to a probationary period, see: Court of Appeal, 19 December 2019, No. 127/19. 
Comments on this judgment were made in Infos Juridiques No. 1-2020 p. 6, available at: https://www.csl.lu/fr/publications-
newsletters/newsletters/infosjuridiques/2020. 

350  The protection also applies during maternity and parental leave, as well as some other (care) leave: Article 123 Labour Law.

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Poland

Portugal

Romania

Serbia

Slovakia

Slovenia

Spain

Sweden

Turkey

Yes. Dismissal is prohibited during pregnancy and maternity/parental leave except in specific 
situations, such as the employer’s bankruptcy or liquidation. 

Yes. The procedure applying to all forms of dismissals is stricter regarding dismissals of 
women during pregnancy, maternity leave, parental leave and breastfeeding of a child, since 
it involves the intervention of a (public) Agency for Equality in Employment (CITE), which has 
to approve the dismissal in advance (Article 63 of the Labour Code).

Yes.351

Yes.

An employer cannot give notice3 5 2 to an employee within the protected period, also meaning 
within the period of a female employee’s pregnancy, when a female employee is on 
maternity leave or a male employee caring for a new-born child is on parental leave (during 
the same period as maternity leave). 

An employer cannot immediately (without notice) terminate the employment relationship 
with a pregnant employee, a female employee on maternity leave, or a male employee caring 
for a new-born child on parental leave.353

Yes, according to Article 115/5 of the ERA.

Yes. The dismissal of a pregnant worker during the probationary period shall be null and 
void, unless it is due to reasons unrelated to pregnancy and maternity (Article 14.2, Workers’ 
Statute).354 

Yes. During pregnancy and maternity leave, the employee is protected by the non-
discrimination rules and the ban on less favourable treatment in the parental leave 
regulation. General labour law provides a strong employment protection, and reasons 
connected with pregnancy or maternity can never constitute a permitted ground for 
dismissal. In addition, the employer may not terminate an employment for an employee on 
maternity or parental leave. The notice period starts on the day when the employee returns 
from the leave. 

Yes. However, there is no obligation to reinstate employees who are employed for a definite 
period or employees who are employed in an establishment with less than thirty employees, 
or employees who do not meet a minimum seniority of six months in case of discriminatory 
or invalid or unjustified dismissal.

United Kingdom No. Dismissal from the beginning of the pregnancy until the end of the maternity leave is 
not prohibited in national law, but if the dismissal is related to the pregnancy or maternity 
leave then it will automatically be deemed unfair (under the Employment Rights Act 1996 
Section 99) and will be discriminatory under the Equality Act 2010.

4.2.4	 Redundancy	and	payment	during	maternity	leave

Payment during maternity leave (in some case by the public social security system) does not cease when 
the  employee  is  made  redundant  (for  reasons  not  connected  to  pregnancy  or  maternity)  in  Albania, 
Austria, Belgium, Bulgaria, Cyprus, Denmark, Estonia, France, Germany, Hungary, Iceland, Italy, 
Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro (in case of collective dismissals), 
the  Netherlands,  North  Macedonia,  Norway,  Portugal,  Serbia,  Slovakia,  Slovenia,  Spain  and 
Sweden. 

351  However, during the probation period (the first 90 days of the work contract), the employer does not have to give any 

reasons for dismissal: Labour Code, Article 31(3).

352  An employment relationship may be terminated by agreement, by notice, by immediate termination and by termination 

during the probation period (Article 59, Section 1 of the Labour Code).

353  Slovakia, Act No. 311/2001 Coll. Labour Code, Article 68, Section 3.
354  Spain, Royal Decree 6/2019 of 1 March 2019. The doctrine of the Constitutional Court exempted the dismissal of a 

pregnant woman during the probationary period, which was not automatically considered null and void, if the employer 
argued that they were not aware of the pregnancy: Judgment of the Constitutional Court 173/2013 of 10 October 2013, 
ECLI:ES:TC:2013:173: http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/23619.

89

In Greece, the payment for maternity leave ceases, but a monthly flat rate unemployment allowance is 
paid. There is no legal regulation on this issue in Finland; payment in case of redundancy would depend 
on the collective agreement. 

In case of the employer becoming insolvent, the status as an insured person in the mandatory health 
insurance  in  Croatia,  which  is  a  prerequisite  for  the  payment  of  maternity  (and  parental)  benefits,  is 
automatically  terminated.  Sometimes  employees  are  not  aware  of  this  and  are  confronted  with  an 
obligation to reimburse payments retroactively. Measures have now been taken in order to ensure that 
insolvency proceedings are not closed if there is no proof that all workers have been formally deregistered 
from the mandatory insurance registers.355

In Ireland, dismissal by reason of redundancy can only come into effect on the completion of maternity 
leave (or additional maternity leave).

4.2.5	 Employer’s	obligation	to	substantiate	a	dismissal	

In most countries the employer has the obligation to substantiate a dismissal, often in writing (Austria, 
Bulgaria,  Croatia,  Cyprus,  Czechia,  Denmark,  Estonia,  Finland,356  France,  Germany,  Greece,357 
Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Malta, Montenegro, Netherlands, 
North Macedonia, Norway, Poland,358 Portugal, Slovakia, Slovenia, Spain,359 Sweden, Turkey,360 
United Kingdom) and in some countries only on request by the worker (e.g. Belgium and Luxembourg) 
or implicitly, when the employer has to prove that the reason for dismissal was not pregnancy or childbirth, 
as is the case in Albania.

In Italy, legislation has been adopted in order to combat so-called blank resignation of working mothers.361 
‘Blank resignation’ refers to an undated resignation letter signed by a worker at the time of recruitment 
which can be used by the employer to make the worker resign when needed (i.e. when pregnant). Often 
the employer makes recruitment conditional on the prospective employee signing such a letter.

355  Croatia, Decision on termination, non-commencement of damages recovery procedures and on writing-off of claims 
for damages based on undue maternity and parental benefits and on settlement of damages from mandatory health 
insurance (Odluka o obustavi, nepokretanju postupaka naknade štete i o otpisu tražbina na ime naknade štete po osnovi 
nepripadno ostvarenih prava na rodiljne i roditeljske potpore te o podmirenju naknade štete iz obveznog zdravstvenog 
osiguranja), NN No. 16/2019.
If an employer dismisses a pregnant employee or an employee on family-related leave, the dismissal is assumed to be 
caused by pregnancy or use of family-related leave unless the employer can provide a different credible reason (Chapter 7, 
Section 9(2)). An employer may dismiss a pregnant employee or an employee on family-related leave using normal 
grounds of dismissal only if the employer ceases all operations.

356 

357  The employer must also submit the dismissal to the Labour Inspectorate: Article 10 of Decree 176/97. In the absence of a 

358 

359 

justification in writing at the time of the termination, the termination will be null and void: Dodecanes CA No 43/2014.
In every case of dismissal (with the exception of employment contracts for a defined period of time), the employer has the 
obligation to substantiate the decision: Article 30(4) Labour Code.
In the case of dismissals for redundancy, the Supreme Court has ruled that the employer must justify the 
specific reason for including a pregnant woman in the group of people dismissed. If the employer fails to 
do so, the dismissal of the claimant must be declared null and void: Judgment of the Supreme Court of 
14 January 2015, appeal number 104/2014, ECLI:ES:TS:2015:711: available at: https://www.poderjudicial.es/search/
doAction?action=contentpdf&databasematch=TS&reference=7324092&links=&optimize=20150313&publicinterface=true
Judgment of the Supreme Court of 20 July 2018, appeal number 2708/16, ECLI:ES:TS:2018:3248: available at: https://www.
poderjudicial.es/search/ contenidos.action?action=contentpdf&databasematch=TS&reference=8515525&statsQueryId=1
06519600&calledfrom=searchresults& links=&optimize=20181001&publicinterface=true; see on this issue CJEU Judgment 
of 22 February 2018, Jessica Porras Guisado v Bankia SA and Others, C-103/16, ECLI:EU:C:2018:99. Royal Decree 6/2019 of 
1 March 2019 introduced this requirement to Article 53.4 of the Workers’ Statute.

360  However, this is not always the case (Turkey).
361  Act No. 92/2012 changed Article 55, para. 4 of Decree No. 151/2012 and extended the period during which mutual 

termination of the employment contract or resignation letters of working mothers must be signed in front of an inspector 
of the Minister of Labour. This period now starts at the beginning of the pregnancy and ends when the child reaches the 
age of three.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021 
Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

4.3	 Maternity	leave

4.3.1	 Duration,	payment	and	share	of	maternity	leave

Article 8 of the Pregnant Workers Directive requires a continuous period of maternity leave of at least 
14 weeks allocated before or after confinement, of which two weeks at least allocated before or after 
confinement are compulsory. According to Article 11(2) and (3), during this maternity leave the rights 
connected with the employment contract must be ensured and workers on maternity leave are entitled 
to maintenance of a payment, and/or an adequate allowance which has to be at least equivalent to sick 
pay (which might be subject to a ceiling). Eligibility requirements for benefits laid down under national 
legislation are allowed (Article 11(4)).

All  countries provide for at least the minimum period of maternity leave of 14 weeks, as set out in 
the Pregnant Workers Directive. Many countries provide for longer periods. The following table gives an 
overview of the length of maternity leave, as well as the length of any potential obligatory period of 
maternity leave, the possibility to share maternity leave with the father, and the amount of payment 
mothers receive during maternity leave.

Possibility to share 
ML with the father? 

Yes, after 63 days’ 
obligatory maternity 
leave

Payment

80 % allowance until 
150 days after birth 

No

100 % of average 
earnings (without 
ceiling, including 
regular bonuses) if 
earning for at least 
3 months prior to 
the maternity leave 
more than the 
mandatory social 
security threshold, in 
2020: EUR 460.66 per 
month. 

Unemployed pregnant 
women are entitled 
to a maternity 
benefit that amounts 
to 180 % of their 
regular monthly 
unemployment benefit 
or unemployment 
benefit per diem.

Table 2 Maternity leave

Country

Duration

Obligatory period

Albania

365 days (390 for 
multiple birth)

Austria

16 weeks

35 (or 60) days 
before the expected 
confinement and 63 
days after birth

8 weeks before birth 
– longer individual 
maternity leave 
before birth in cases 
of medically attested 
health risks for mother 
or foetus; 8 weeks 
after birth, 12 weeks 
in cases of premature 
births, multiple 
births or delivery by 
Caesarean section; no 
more than 20 weeks 
in full

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Country

Duration

Obligatory period

Belgium

15 weeks

Bulgaria

410 days  
(58.5 weeks)

1 week compulsory 
antenatal leave, can 
only be taken before 
birth, 5 weeks of 
optional antenatal 
leave and 9 weeks 
compulsory postnatal 
leave 

45 days (6.5 weeks) 
before birth

Croatia

98 days: 28 days 
before and 70 days 
after confinement

98 days: 28 days 
before and 70 days 
after confinement

Additional voluntary 
leave from the 71st 
day after confinement 
until child reaches the 
age of 6 months363 

Possibility to share 
ML with the father? 

No, but if the mother 
dies after giving birth 
the remaining leave 
is transferred to the 
mother’s spouse/life 
partner362 

Payment

82 % for the first 
30 days (approx. 
4 weeks), 75 % 
(daily maximum 
EUR 106.90) 
remainder

Since 2009, fathers 
can replace the 
mother with her 
consent after the child 
is 6 months old

The time from 71st 
day after birth until 
child reaches age of 
6 months is entirely 
transferable to the 
father 

Cyprus

18 weeks (at least 
2 weeks before 
and 9 weeks after 
confinement)

No

11 weeks fully 
compulsory, starting 
at least two weeks 
before the expected 
due date.

410 days (58.5 weeks) 
are paid at 90 % of 
the average income, 
no ceiling

Compulsory and 
additional (voluntary) 
maternity leave are 
both paid at the rate 
of 100 % of the base 
for calculation of 
salary compensation, 
in accordance with 
the provisions on 
mandatory health 
insurance (no ceiling).
If no prior length of 
service is satisfied (12 
months uninterrupted 
length of service / 18 
months interrupted 
length of service): 
70 % of budgetary 
calculation base 
(currently EUR 312 
(HRK 2 328)) 

72 % of the weekly 
average of the basic 
insurable earnings of 
the beneficiary in the 
previous contribution 
year. Maternity benefit 
cannot be more than 
the person’s normal 
income. This situation 
might arise if the 
mother receives part 
of her salary from 
her employer during 
maternity leave. 

362  Or if the worker has to remain in hospital after giving birth while the child can be taken home.
363  The employee can use additional maternity leave in the form of the right to work half of the full working time, in which 

case its duration can be prolonged even after the child is six months old (for the time spent on this form of leave before the 
child turned six months of age), but at the latest until the child is nine months old (Article 15(1) to (3), Act on Maternity and 
Parental Benefits).

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

Country

Duration

Obligatory period

Czechia 

28 weeks, 37 weeks 
in case of multiple 
births

There is a 12-week 
obligatory period of 
maternity leave before 
(6, max. 8 weeks) and 
after the birth; this 
period should not end 
less than six weeks 
after the birth

Possibility to share 
ML with the father? 

Possible to transfer 
the maternity leave 
to the father after the 
child reaches the age 
of six weeks

Payment

70 % of average 
income of the last 12 
months, with a ceiling 
of EUR 1 640 

Denmark364

4 weeks before the 
expected birth and 14 
weeks after the birth 

Estonia

Finland

20 weeks (140 
calendar days: 70 
days pregnancy 
leave and 70 days 
maternity leave)

105 weekdays 
(between and 
including Monday 
to Saturday) – 
approximately 16.5 
weeks

2 weeks after the birth Not the 14 weeks of 

maternity leave. 
The father or co-
mother may choose 
to take some of the 
32 weeks of parental 
leave at the same 
time as the mother is 
taking maternity leave.

No

None, but pregnancy 
leave should start 
between 30 and 
70 days before the 
expected birth in order 
to receive 70 days of 
benefit 

2 weeks before 
estimated birth and 2 
weeks after

No

France

16 weeks (six weeks 
before estimated 
birth date and 10 
weeks after)

2 weeks before and 6 
weeks after

No

100 % salary 
according to some 
collective agreements. 
Benefit for 14 weeks 
at the level of sick 
leave benefits: 
EUR 592 per week. 

100 % of average 
earnings of the 
insured person in the 
preceding calendar 
year, no ceiling

Payment is dependent 
on previous earnings: 
90 % for the first 56 
weekdays after birth 
up to EUR 50 606, 
and for salaries higher 
than this, 32.5 % of 
salary above that. for 
the rest of the leave, 
70 % up EUR 32 892. 
and above that sum 
up to EUR 50 606 
40 %, above that 
25 %. Women with no 
previous earnings are 
entitled to a minimum 
benefit. 

100 % of average 
earnings with ceiling 
of EUR 82.32 per day. 

364  Amendment to the Act on Maternity and Parental Leave has been submitted in December 2021, proposal 104 of 

22 December 2021, expected to come into force 1 July 2022. The amendment redistributes the weeks of maternity, 
paternity and parental weeks with a view to implement Articles 5 and 8 in the Work life balance directive.

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Country

Duration

Obligatory period

Possibility to share 
ML with the father? 

Payment

Germany

14 weeks, up to 18 
weeks in cases of 
premature or multiple 
births

Greece365

Public sector: 5 
months (approx. 22 
weeks);
private sector: 17 
weeks366 (in addition, 
six months special 
leave granted to 
women only after the 
end of the maternity 
leave) 

Hungary

24 weeks

Iceland

6 months after 
birth367
Each parent has a 
right to 6 months 
maternity/paternity 
leave until the child is 
2 years old

6 weeks before and 8 
weeks after birth; 12 
weeks after birth in 
cases of premature or 
multiple births. During 
the 6 weeks antenatal 
protection period the 
employee is allowed 
to work voluntarily, 
but the employer 
is prohibited from 
requiring her to work. 

All. Public sector: 2 
months (approx. 9 
weeks) before birth 
and 3 months (approx. 
13 weeks) after; 
private sector: 8 weeks 
before birth and 9 
weeks after 

2 weeks obligatory;
in the absence of 
agreement: 4 weeks 
before birth

Two weeks after birth 
is obligatory for the 
parent who has given 
birth

Ireland

26 weeks

2 weeks

No

No

No

6 weeks of each 
parent’s independent 
leave 

Fathers cannot share 
the leave, but if the 
mother dies the 
father takes over the 
remaining leave

100 % of last average 
income of the last 13 
weeks or 3 months for 
dependent employees, 
no ceiling

Public sector: 100 %, 
paid by employer, 
without upper limit. 
Private sector: part 
is paid by employer, 
with a social security 
allowance for the 
remaining period, 
which covers wages 
for the majority of 
women. 

70 % of the average 
daily salary – no 
ceilings on payments

80 % of average total 
wages of the last 12 
months (finishing 6 
months before birth).
The ceiling is  
EUR 4 000 per month. 

First 26 weeks are 
paid at a level of 
EUR 245 gross per 
week, following 16 
weeks are unpaid. 
The employer can 
choose to ‘top up’ the 
payment if agreed 
between employer and 
employee. 

365  After the cut-off date (1.1.2021) by Act 4808/2021 the 9-weeks post-natal part of maternity leave was extended to adoptive 
mothers; moreover, the ‘special’ maternity protection allowance was extended to adoptive mothers and employees 
in the public sector employed under labour law. See EELN flash report of 12 July 2021 https://www.equalitylaw.eu/
downloads/5447-greece-innovative-provisions-on-family-related-leaves-act-4808-2021-104-kb.

366  Female salaried lawyers are not entitled to an adequate maternity allowance: EELN flash report (Greece) of 8 May 2020,  
‘Female salaried lawyers not entitled to adequate maternity allowance’, available at: https://www.equalitylaw.eu/
downloads/5133-greece-female-salaried-lawyers-not-entitled-to-adequate-maternity-allowance-126-kb.
Iceland, Maternity/Paternity and Parental Leave Act No. 140/2020, Article 8, which came into effect 1 January 2021 and has 
replaced the Act on Maternity, Paternity Leave and Parental Leave No. 95/2000.

367 

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Country

Duration

Obligatory period

Italy

22 weeks (5 months)

All: 2 (or 1 or 0) 
months before birth, 
3 (or 4 or 5) months 
after

Latvia

None, it is the right of 
the pregnant worker, 
but an employer must 
not employ a pregnant 
woman 2 weeks 
before and 2 weeks 
after she gives birth

56 days before and 
56 days after the 
expected date of 
confinement. Plus 
extra 14 days if 
woman has visited a 
doctor and registered 
her condition before 
12th week of 
pregnancy (18 weeks 
in total)

Possibility to share 
ML with the father? 

Fathers may obtain 
maternity leave 
after the birth for 
the whole length of 
maternity leave or 
for the remaining 
period in special cases 
(e.g. death or serious 
illness of the mother). 
And optional right to 
take one day of leave 
within five months 
after the birth.

The right to 
maternity leave is not 
accessible to fathers, 
unless exceptional 
circumstances occur 
– the death of the 
mother or the mother 
waives her parental 
rights 

Liechtenstein 20 weeks

No

8 weeks after birth 
are compulsory, 
following 12 weeks 
are voluntary. 4 weeks 
before birth 

Lithuania

70 calendar days 
before expected 
childbirth and 56 
days after childbirth. 

No

Fully voluntary, 
but if not taken, 
the employer must 
grant 14 days leave 
immediately after 
childbirth

All the maternity leave 
is compulsory

No

Luxembourg

20 weeks (8 weeks 
antenatal leave and 
12 weeks post-natal 
leave), but can be 
extended if birth 
takes place after 
expected date of 
delivery

Payment

80 % of average daily 
remuneration paid 
throughout the entire 
maternity leave period, 
no ceiling.

80 % of gross salary 
for entire maternity 
leave period, no 
ceiling.368

80 % of salary for full 
20 weeks, 16 of which 
must follow childbirth. 
No explicit ceiling; the 
payment is based on 
the maximum income 
for the obligatory 
insurance for illness 
and old age, which 
varies according to the 
general development 
of salaries

If the woman has 
been insured for 
more than 12 months 
over the previous 
24 months, 77.58 % 
of reimbursed 
remuneration. The 
minimum benefit is 
EUR 234 per month.

100 %, granted on 
the basis of a medical 
certificate and treated 
as period of sick leave, 
no ceiling to payment.

368  The fact is that, in reality, maternity allowance exceeds the normal salary, because people in active employment after 

deduction of taxes are entitled to approximately 68 % of their gross salary.

95

Country

Duration

Obligatory period

Possibility to share 
ML with the father? 

Payment

Malta

18 weeks

No

4 weeks before and 
six weeks after the 
expected date of 
confinement.

Montenegro

Parental Leave 
(including maternity 
leave) can last up to 
365 days counting 
from the birth of 
the child. Mandatory 
maternity leave of 98 
days. 

Yes, after the 
obligatory period of 
70 days after the 
birth of the child the 
parental leave may be 
used by the father, if 
the mother has ceased 
to exercise the right 
to maternity/parental 
leave

Compulsory maternity 
leave of 28 days, 
before giving birth and 
70 days after the birth 
of the child. As a rule, 
part of the maternity 
leave for 70 days 
after childbirth is used 
by the mother of the 
child, but this right 
can also be exercised 
by the father in two 
specific cases.369

Netherlands

16 weeks

Between 4 and 6 
weeks are compulsory 
before birth and at 
least 10 weeks after 
birth370

No, except in case 
of the mother dying 
during the birth or 
maternity leave.

100 % for first 14 
weeks paid by the 
employer, then 4 
weeks maternity 
benefit. The rate is 
in accordance with 
the Social Security 
Act. The rate may be 
subject to an increase. 
Ceiling of EUR 181.08 
per week.

100 % of the basic 
wage if the mother 
was employed 
continuously for 
12 months by the 
employer concerned. 
If an employee 
has continuously 
worked between 
6 and 12 months 
before the leave, 
the compensation 
of the employer is 
calculated as 70 % 
of the average 
monthly salary. If an 
employee has worked 
continuously between 
3 and 6 months the 
compensation is 
50 % of the average 
monthly salary. If 
an employee has 
worked continuously 
up to 3 months, the 
compensation is 
30 % of the average 
monthly salary

100 % of salary paid, 
up to maximum daily 
wage of EUR 214.28 
per day.

369  1. If two or more children are born, this right can be used by both parents at the same time; 2. In a case where the mother 
dies at childbirth, is seriously ill, has left the child, has been deprived of her parental right or is serving a sentence of 
imprisonment, the child’s father has the right to use the maternity leave from the day of the child’s birth.
If the child has to remain in hospital for longer than eight days after the birth, the maternity leave may be extended. The 
maximum extension is ten weeks: Article 3:1(5) Work and Care Act, 2001.

370 

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Country

Duration

Obligatory period

North 
Macedonia

9 months (38 weeks), 
15 months for 
multiple births

73 days (approx. 10 
weeks): 28 days (4 
weeks) before birth 
and 45 days (approx. 6 
weeks) after birth

Payment

100 % of the average 
individual salary for 
the last 12 months 
(52 weeks) 
(or minimum 6 
months (approx. 
25 weeks)), but not 
higher than the value 
of four average 
salaries at national 
level (EUR 1 400 
approximately). If 
the mother uses the 
obligatory part, the 
rest of the leave is 
paid 50 % on top of 
her regular salary

Level of sick pay, 
100 % of normal full 
pay with a maximum 
of EUR 58 807.28 per 
year

Possibility to share 
ML with the father? 

The leave cannot 
be shared, but can 
be taken over by 
the father after 9 
months (38 weeks), 
or 15 months (52 
weeks) for multiple 
births, provided 
that the mother is 
incapacitated or she 
does not use the leave

Depends if you choose 
100 % or 80 % 
payment in parental 
leave. 15 (or 19) 
weeks reserved for 
each of the parents. 
The remaining period 
of parental leave can 
be shared. 

3 weeks before birth 
and 6 weeks after

Norway

Poland

Portugal

Nine weeks of 
parental leave 
are reserved for 
the mother.371 The 
parents can choose 
100 % or 80 % 
payment during 
the parental leave 
period. 15 weeks of 
the parental leave 
are reserved for 
each of the parents 
(termed the ‘mother’s 
quota’) if you choose 
100 % payment. If 
the mother chooses 
80 %, the mother’s 
(and father’s) quota is 
19 weeks.

20 weeks and from 
31 to 37 weeks in 
cases of multiple 
birth, depending 
on the number of 
children 

‘Initial parental leave 
just for the mother’ 
6 weeks after birth. 
‘Initial parental leave’ 
for the remaining 
time until 120 or 150 
days, according to the 
choice of parents 

14 weeks after birth372

The remaining weeks 
can be taken by the 
father, with consent of 
the mother

100 % of average 
earnings, no ceiling

6 weeks for the 
mother after birth (the 
‘initial parental leave’)

The period remaining 
after the confinement 
period of 6 weeks 
after giving birth can 
be divided between 
both parents 

No payment by the 
employer, but a social 
security allowance 
paid on the basis of 
100 % of the average 
salary of the worker 
if 120 days are taken 
or 80 % if 150 days 
are taken. No ceiling to 
payment 

371  Maternity leave is specifically defined as being included in and a part of the parental leave. The Norwegian solution thus 

blurs the two different types of leave.

372  The compulsory period of maternity leave is only eight weeks if the female worker has a certificate of incapacity for 

self-support (Article 180(6) of the Labour Code) or is in hospital because of a medical condition that prevents her from 
personally taking care of her child (Article 180(10) of the Labour Code).

97

Country

Duration

Obligatory period

Possibility to share 
ML with the father? 

Payment

Romania

18 weeks

6 weeks after birth

No

Serbia

45 days at the 
earliest, and 28 days 
in any case, prior 
to the time of the 
expected delivery 
and three full months 
from the date of birth

Must commence 
maternity leave 
28 days before the 
expected date of 
delivery and cannot 
be on maternity leave 
shorter than 3 full 
months

Slovakia

34 weeks (37 weeks 
for single mothers;  
43 for multiple births)

6-8 weeks before birth 
and 6 weeks after 
birth

Slovenia

15 weeks, which 
commence 4 weeks 
before the expected 
date of birth 

15 days (approx. 2 
weeks), before or after 
birth or both 

6 weeks after birth for 
the mother

Spain373

Birth-related leave 
with similar features 
for both parents.
16 weeks, for the 
biological mother

One week more 
for each parent 
if the child has a 
disability374

No, but men can 
receive maternity 
allowance if the 
mother agrees to it 
and not at the same 
time

No. The father has 
the right to maternity 
leave only if the 
mother:
1. has died,
2. has left the child,
3. is permanently or 
temporarily unable 
to live and work 
independently

No, the father also 
has the right to birth-
related leave375

85 % of average 
monthly income of 
the last 6 months, 
not more than 12 
minimum salaries

The amount of 
maternity pay is 
equal to the average 
basic salary paid in 
the past 18 months 
prior to the month 
in which maternity 
leave was taken, up 
to a maximum of 3 
average salaries in 
Serbia. 

Maternity benefit 
for 34 weeks 
amounting to 75 % 
of the mother’s daily 
income, maximum 
EUR 1 548.70 per 
month

100 % of the average 
salary of the last 12 
months immediately 
prior to the date on 
which benefits were 
claimed; no ceiling 

100 % of monthly 
salary, dependent 
on minimum 
period of working 
time, no ceiling 
(however, maximum 
monthly amount 
of social security 
contributions and thus 
maternity benefits of 
EUR 4 070.10376

373  Following the reform introduced by Royal Decree 6/2019 of 1 March 2019. Transition period until 2021.
374  Also extendable in case of multiple births or hospitalisation of the child.
375  However, there are some possibilities to share the leave during the transition period.
376  For the contributory maternity leave. There is also a non-contributory maternity leave if a working mother does not meet 

the requirements of the contributory maternity leave. The allowance is then EUR 753.06.

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Country

Duration

Obligatory period

Sweden

14 weeks (7 weeks 
before estimated 
birth and 7 weeks 
after birth) 

2 weeks before or 
after birth

Turkey

16 weeks

All: 8 weeks before 
birth and 8 weeks 
after – 8 weeks before 
birth can be reduced 
to 3 weeks (with 
approval of doctor), 
with the remaining 5 
weeks added to the 8 
weeks after birth.
Multiple births: 2 
additional weeks 
added to antenatal 
leave

United 
Kingdom

52 weeks

2 weeks after birth

Possibility to share 
ML with the father? 

Maternity leave 
is included in the 
parental leave out of 
which the father is 
entitled to half. Only 
the mother may take 
out part of the leave 
before the birth of the 
child. 

No, but if a civil 
servant or employee 
dies after giving birth, 
the remaining leave 
is transferred to the 
spouse

Yes, between 2 
and 26 weeks may 
be transferred to 
the father (shared 
parental leave)

Payment

Maternity benefits 
are paid at sick-
leave level (80 % of 
income up to a level 
of approximately 
EUR 47 000 per 
year). If not, income 
based, benefits are 
paid at the basic level 
(grundnivå) of EUR 25 
(SEK 250) a day.

For civil servants, 
regular salaries are 
paid throughout the 
leave by public bodies. 
Female employees 
are paid via the Social 
Security Institution, 
which amounts to 
sickness payments 
(two thirds of regular 
wages).377

Entitled to 39 weeks 
of maternity pay; 
90 % of salary in the 
first 6, and a fixed 
rate of GBP 151.20 
(EUR 174.10) per week 
during the remaining 
33 weeks

4.3.2	 Conditions	for	eligibility

In  Italy,  Montenegro,  Serbia  and  Sweden,  no  specific  conditions  apply  for  entitlement  to  maternity 
benefits. In Malta, the applicant must be a citizen of Malta, married/cohabiting with a citizen of Malta, a 
citizen of a European Union Member State, a citizen of a member country of the European Social Charter, 
or have refugee status and ordinarily reside in Malta or Gozo. Moreover, she must have availed herself of 
more than 14 weeks of maternity leave. 

The  following  countries  have  specific  eligibility  conditions  for  entitlement  to  (full)  maternity  benefits, 
most often required periods of employment or (statutory social) insurance: Albania, Austria, Belgium, 
Bulgaria,  Croatia,  Cyprus,  Czechia,  Denmark,378  Estonia,  Finland,  France,  Hungary,  Iceland, 
Ireland,  Liechtenstein,  Lithuania,  Luxembourg,  the  Netherlands,  North  Macedonia,  Norway, 
Poland, Portugal, Serbia, Slovakia, Slovenia, Spain,379 Turkey and the United Kingdom.

In Germany, quasi-subordinate workers are covered by the new Maternity Protection Act. However, they 
are explicitly not entitled to maternity allowances except when they are insured under a statutory health 

377  For outpatient (not hospitalised) treatment. For inpatient treatment, the maternity allowance is set at half the daily earnings.
378  The right to maternity benefit depends on the mother’s legal residence in Denmark.
379  For the contributory maternity leave a previous period of working time is required, but this does not apply to the non-

contributory maternity leave.

99

insurance scheme and even then the allowance is no more than EUR 13 per day and EUR 210 in total.380 
The national expert considers that, with regard to the criteria for a comparable need for social protection, 
these mothers (to be) should be equally covered.

In  Greece,  social  security  legislation  makes  the  payment  of  the  maternity  allowance  conditional  on  the 
completion of 200 working days during the two years preceding the commencement of maternity leave.381 
According to the national expert, this constitutes a violation of Article 11(4) of Directive 92/85/EEC. Moreover, 
the  granting  of  maternity  allowance  is  subject  to  stricter  conditions  than  the  granting  of  sickness 
allowance (the granting of the latter is subject to 120 working days in the year preceding the notification 
of the sickness whereas conditions for sickness benefits in kind were lowered in 2020 to 75 and further 
to  50  working  days  in  the  year  preceding  the  notification  of  the  sickness  to  facilitate  entitlement 
thereto due to the pandemic crisis).382 The national expert considers this a violation of Article 11(3) of 
Directive 92/85/EEC, which requires that the maternity allowance guarantee income at least equivalent 
to that which the worker concerned would receive in the event of a break in her activities on grounds 
connected  with  her  state  of  health.383  In  addition,  fixed-term  state  employees  are  not  entitled  to  the 
same rights and protection as their colleagues with permanent contracts. The national expert points at 
diverse forms of direct sex discrimination of, in particular, substitute state school teachers with fixed-term 
contracts. Adopted following an intervention by the Greek Ombudsman, the new provision of Article 26 
Act 4599/2019 provides the right of female substitute teachers to reduced working hours or alternatively 
to a paid leave for the upbringing of the child up to three months and 15 days, which is to be taken 
exclusively after the end of the maternity leave, which covers adoptive and foster mothers as well. The 
time period of the above leave constitutes teaching service and is recognised as insurable time by the 
competent social security insurance schemes.

In Latvia, official employment is required, but a calculation on presumed income is possible in order to 
be entitled to an allowance.

4.3.3	 Right	to	return	to	the	same	or	an	equivalent	job

The right to return to the same or an equivalent job on terms and conditions which are no less favourable 
and  to  benefit  from  any  improvement  in  working  conditions  is  provided  for  in  Article  15  of  Recast 
Directive 2006/54/EC. In most states a worker returning to work after her maternity leave is protected 
against unfavourable treatment. Workers are generally guaranteed by law to be able to return to the 
same  job  or,  if  this  is  not  possible,  to  an  equivalent  or  similar  job.  In  Austria,  parental  leave  periods 
have to be factored into time-related pay scheme advancements, so that the salary of every employee 
returning to the workplace after the leave period starts at the same level as they would be eligible for if 
they had been working.384 In Finland, the criteria that determine an equivalent job are the nature of the 
employee’s previous work and their education and work experience. The Irish Maternity Protection Act 
contains very detailed rules on return to work.385 In Italy, workers have the right to return to the same 
workplace or to another workplace in the same municipality and to work there until the child is one year 
old. In the United Kingdom, women have the right to return to the same job if returning from a period 

380  The Federal Social Court, judgment of 26 September 2017, B 1 KR 31/16 R, decided that public broadcasters are obliged to 
contribute to the funding of maternity allowances for anyone for whom they pay social security contributions, even if they 
classify these people as ‘freelancers’ under labour law.

381  Greece, Article 39 of Act 1846/1951 on IKA, OJ A 179/21.06.1951.
382  Greece, Article 23 Act 4529/2018, OJ A 56/23.3.2018; Article 37(8) Act 4670/2020, OJ A 43/28.2.2020 reduced the minimum 

of 75 days to 50 days as of 28.02.2020.

383  The national expert highlights that the fact that Greek law foresees a maternity leave that exceeds the minimum EU law 
requirements in length and pay is irrelevant. The CJEU has also condemned adverse treatment related to forms of leave 
granted by national legislation which exceeded minimum EU law requirements: See e.g. CJEU, C-284/02, Land Brandenburg 
v Ursula Sass, 18 November 2004; ECLI:EU:C:2004:722, concerning maternity leave longer than 14 weeks.

384  Para. 15f Maternity Protection Act, in force from 1 August 2019, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/

NOR40215892/NOR40215892.pdf, para. 7c Fathers’ Parental Leave Act, https://www.ris.bka.gv.at/Dokumente/Bundes 
normen/NOR40022232/NOR40022232.pdf.
In Section 26.

385 

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of no more than 26 weeks’ leave. If the employee takes a longer period of maternity leave, the right to 
return to the same job is qualified: if return to the same job is not reasonably practicable, the right is to 
return to another job which is suitable for the worker, appropriate for her to do in the circumstances, and 
which is on terms and conditions not less favourable than those which would have applied had she not 
been absent.386

However, a few countries do not provide such a guarantee (e.g. the Netherlands)387 or they do not do so 
explicitly (e.g. Belgium, Estonia, Germany and Turkey). In Germany, such a provision is not necessary. 
Due to the German concept of maternity leave, the issue of ‘returning to the same job’ does not arise 
because the employment relationship remains totally unaffected. However, a transfer to a non-equivalent 
post after maternity leave would be direct discrimination under the General Equal Treatment Act and the 
worker concerned would be awarded compensation.388 In Estonia, equivalent job and improved working 
conditions  are  mentioned  if  returning  from  maternity  leave,  but  not  explicitly  stressed  after  parental 
leave. While there is prohibition of dismissal, it happens that women/men cannot enjoy their rights after 
parental leave. In Croatia, if an employer could not provide an equivalent job, this would be considered 
a regular dismissal, for which the employer would have to have a justifiable reason. The employer must 
stipulate the reasons in writing and provide a statement of the reasons. 

In Hungary, the current Labour Code (adopted in 2012) does not expressly guarantee the right to return 
to the original job or an equivalent job at the end of maternity/parental leave. Due to the cumulative 
interpretation of various sections of this Code, however, the employee has the right to return to work with 
the same employer and, in the absence of a mutually agreed modification of the employment contract, 
the employee has the right to return to their original job.

In Greece, this requirement often seems to be disregarded in practice in the private sector, as evidenced 
by the complaints submitted by women to the Ombudsman.

4.4	 Adoption	leave

EU  law  does  not  require  the  Member  States  to  introduce  a  specific  adoption  leave.  However,  Member 
States which recognise such a right must ensure that men and women exercising the right to adoption 
leave are protected against dismissal and are  entitled at the end  of this  leave  to  return  to  their  jobs 
or  to  equivalent  posts  on  conditions  which  are  no  less  favourable  to  them,  and  to  benefit  from  any 
improvement in working conditions to which they would have been entitled during their absence (Article 16 
of Directive 2006/54/EC).

In addition, adoptive parents are entitled to parental leave according to Clause 2 of the Parental Leave 
Directive 2010/18/EU. Clause 4 of this Directive stipulates that the Member States and/or social partners 
shall assess the need for additional measures to address the specific needs of adoptive parents. 

All countries provide for adoption leave, but in some countries age limits of the adopted child apply 
and the length of adoption leave differs between countries. For example, in Austria, adoption leave of 
at least six months can be taken when children below the age of seven years are adopted. For younger 
children, adoption leave can be taken up to the child’s second birthday. In Bulgaria, an adoptive mother 
of a child up to five years old has right to leave of 365 days from taking the child but no later than the 
child reaching the age of five years. When the adoptive parents are married and the mother works under 

386  United Kingdom, Regulation 18(2), 18A.
387  The Commission started an infringement procedure on this issue on 24 January 2013, infringement No. 2013/45. On 

22 October 2014 the CJEU handed down its judgment on this issue, and dismissed the action as inadmissible because 
not all of the Article 258 TFEU formalities had been complied with. Specifically, the Commission did not identify any rule 
of Dutch law that in its content or application was contrary to the wording or the objective of the relevant provisions of 
Directive 2006/54. See Judgment of 22 October 2014, Commission v the Netherlands, C-252/13, ECLI:EU:C:2014:2312.

388  Germany, Labour Court of Wiesbaden, Judgment of 18 December 2008, 5 Ca 46/08. 

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a labour contract, she can agree for the adoptive father to take the leave after the first six months. In 
Czechia, adoption leave can last until the child reaches three years of age; if a child is older than three, 
but younger than seven, when adopted, the leave can be taken for 22 weeks. The adoptive parents are 
entitled to maternity benefit and also to a parental allowance paid from the state’s social support system, 
under the same conditions as biological parents. In Ireland, the length of adoption leave is 24 weeks for 
a qualified adopter (who can also be a self-employed parent and this is also available for male same-sex 
couples). The benefit is paid on the same terms as maternity benefit and there is an additional unpaid 
leave of 16 weeks.389

In  Estonia,  adoption  leave  is  70  days  following  the  date  of  entry  into  force  of  the  court  judgment 
approving the adoption (if a child is under 10), paid entirely by the state. An adoptive parent has the 
same rights as biological parents. In the United Kingdom, specific eligibility conditions apply, such as 26 
weeks’ qualifying service. In Belgium, Croatia and Spain the period of leave is extended for adoption 
of a disabled child.

In  Albania,  Austria,  Bulgaria,  Denmark,  Estonia,  Hungary,  Iceland,  Ireland,  Italy,  Luxembourg, 
North Macedonia, Norway, Poland, Portugal,390 Slovakia, and Spain,391 most if not all protections 
and rights available under statutory maternity leave are also available under statutory adoption leave. 
The same is true in Greece, although in the public sector the protection does not apply to workers with a 
fixed-term contract and the national expert points out a breach of Directives 2010/18/EU and 1999/70/EC.  
In Hungary,  an  ‘adoption  fee’  was  introduced  in  2020  for  (insured)  parents  who  adopt  an  older  child 
(without  age  limit).  The  benefit  is  provided  for  six  months  (EUR  625  per  month,  reduced  by  taxes  to 
EUR 470 per month).

In Slovakia so-called substitute parents (i.e. adoptive parents, foster carers or carers in the event of the 
death of the child’s mother) can apply for maternity and parental leave. In Romania there is no specific 
adoption leave, but the law stipulates that parents who adopt a child have a right to parental leave.392 In 
Lithuania, there is a similar approach393 as well as in Serbia and Sweden. 

4.5	 Parental	leave

Directive  2010/18/EU  repealed  Directive  96/34/EC  by  8  March  2012  and  implements  the  revised 
Framework Agreement on parental leave that the European social partners reached in June 2009.394 This 
Agreement  lays  down  minimum  requirements  designed  to  facilitate  the  reconciliation  of  parental  and 
professional responsibilities for working parents (Clause 1(1)). Member States may adopt more favourable 
measures. The Framework Agreement applies to all workers, men and women, who have an employment 
contract or employment relationship as defined by the law, collective agreements and/or practice in force 
in each Member State. The Agreement thus also applies to part-time workers, fixed-term contract workers 
and temporary agency workers (Clauses 1(1) and 1(2)). They are entitled to an individual right to parental 
leave on the grounds of the birth or adoption of a child so as to take care of that child until a given age 
(up to eight years). The parental leave shall be granted for at least a period of four months and should, 
in principle, be provided on a non-transferable basis. To encourage both parents to take leave on a more 
equal basis, at least one of the four months has to be provided on a non-transferable basis (Clause 2). In 
practice, up until now parental leave is still much more often taken by mothers than fathers.395 Member 
States are not yet obliged to introduce (partially) paid parental leave. 

389  Self-employed people are also entitled to adoption leave benefit provided they have the requisite social insurance 

contributions, which is the same as under the maternity legislation.

In cases of adoption or fostering of a child younger than 6 years or between 6 and 18 if a child is disabled.

390  Compared to the ‘initial parental leave’.
391 
392  Romania, Article 8(2) of the Government Emergency Ordinance No.111/2010.
393  There is a right to three months parental leave for adoptive parents: Article 134(2) of the Labour Code.
394  Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave 
concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, OJ 2010, L 68/13.

395  See Eurostat: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=lfso_10lparlea&lang=en. 

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In  2015,  the  former  European  network  of  legal  experts  in  the  field  of  gender  equality,  published  a 
comprehensive report on the implementation of the Parental Leave Directive 2010/18/EU.396

In July 2019, a new Directive on Work-life Balance 2019/1158 entered into force which also addresses 
parental  leave.397  The  main  changes  are  notably  that  the  non-transferable  period  is  increased  from 
one month to two months of parental leave which cannot be transferred from one parent to the other 
(Article 5(2)). Workers will be entitled to an adequate payment or allowance during the two non-transferable 
months of the parental leave. The amount of the allowance has to be determined by the Member States 
(Article  8(1)  and  (2)).  In  addition,  specific  provisions  apply  regarding  employment  rights,  protection 
against unfavourable treatment and dismissal, as well as the burden of proof, victimisation and penalties  
(Articles 10-14). Finally, equality bodies will be competent with regard to issues of discrimination within 
the scope of the Directive (Article 15). The Directive must be transposed into national law by 2 August 
2022 (Article 20(1)).398

As  of  1  July  2020,  fathers,  same-sex  partners  and  partners  of  the  mother  in  the  Netherlands  are 
entitled to a benefit of 70 % of the daily salary during five weeks of additional birth leave/parental leave, 
with a cap of 70 % of the maximum daily wage as defined in social security legislation. The mother’s 
partner is also entitled to ‘normal’ birth leave, which consists of one week of paid leave. This leave must 
be paid by the employer and must be taken within four weeks of the birth of the child. The additional 
birth leave can be taken within six months after the birth. Apart from this form of parental leave, which 
is actually birth leave, the social security system in the Netherlands does not provide for an allowance 
during parental leave.

In Spain, birth-related leave as introduced by Royal Decree 6/2019 combines features of paternity leave 
and parental leave as defined and regulated in Articles 3 to 5 of Directive 2019/1158. In the case of 
the other parent, birth-related leave is intended for the provision of care to the child,399 as defined in 
Article 3.1.b. of Directive 2019/1158. When fully implemented in 2021, it will be for a period of 16 weeks, 
the first six of which are compulsory and must be used immediately after the birth of the child, full-time 
and without interruption.

Many  countries  did  not  formally  implement  the  Parental  Leave  Directive  2010/18/EU  because  they 
believed  that  their  national  legislation  already  complied  with  EU  law  (Austria,  Czechia,  Finland, 
Germany, Hungary, Iceland, Latvia, Lithuania, Portugal, Spain, Sweden). In addition, the experts 
for the EEA countries of Iceland, Liechtenstein and Norway indicate that national law is in accordance 
with  EU  law.  Albania  has  partially  implemented  Directive  2010/18/EU.  Part-time  workers,  fixed-term 
contract workers or people with a contract of employment or employment relationship with a temporary 
agency are excluded from the right to parental leave. In Turkey, there is no legislation and/or national 
collective  agreement,  or  case  law  specifically  mentioning  parental  leave  within  the  understanding  of 
Directive 2010/18/EU. However, there are provisions for family-related leave or leave related to childcare 
for civil servants that may be used for family/parental issues, which are quite generous and exceed the 
requirements of Directive 2010/18/EU. Three candidate countries (Montenegro, North Macedonia and 

396  Do Rosário Palma Ramalho, M., Foubert, P., Burri, S. (2015), The implementation of Parental Leave Directive 2010/18 in 

33 European Countries, European Commission, and Masselot, A. (2018), Family leave: enforcement of the protection against 
dismissal and unfavourable treatment, European Commission, both available at: https://www.equalitylaw.eu/publications.
397  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, pp. 79–93, available at: https://eur-lex.europa.
eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.188.01.0079.01.ENG.

398  The implementation period is two years longer as regards the payment of the last two weeks of the non-transferable 

period of parental leave (Article 20(2)). See for an overview of the impact of the Work-Life Balance Directive 2019/1158 
on the national level: Oliveira, Á., De la Corte-Rodríguez, M. and Lütz, F. (2020) ‘The new Directive on Work-Life Balance: 
towards a new paradigm of family care and equality?’ 45(3) European Law Review, 295 and Revue de Droit Comparé du 
Travail et de la Sécurité Sociale, Dossier thématique, ‘La Directive 2019/1158 du 20 juin 2019 concernant l’ équilibre entre 
vie professionnelle et privée des parents et des aidants’, 2020/3. 
In the case of birth-related leave for biological mothers, the aim of the legislator is also to guarantee time to recover after 
giving birth, to ensure the health of women and to prevent undue pressure to return to work too soon.

399 

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Serbia) have not implemented the Directive. In the other countries, formal transposition of the Directive 
has occurred or minor amendments to national law have been made.

Conditions on access to parental leave in Luxembourg’s legislation regarding the status of the worker at 
the time of the birth were considered contrary to EU law by the CJEU. However, this was not the case for 
the condition that the parent concerned must be employed without interruption for a period of at least 12 
months immediately preceding the start of the parental leave.400

Directive 2010/18/EU contains minimum requirements. The entitlements to parental leave differ greatly, 
in particular as regards length and/or income during leave, and in some countries much more favourable 
provisions apply. For example, in Norway, parents are entitled to 12 months of leave, of which 46 weeks 
are paid (parental benefit) at the full daily rate, respectively 56 weeks at a reduced rate in connection with 
the birth of the child. In addition, parents are entitled to two more years of (unpaid) parental leave until 
the child is three years old or until the workers have another child. In Portugal, there are several types 
of ‘parental leave’, including a ‘grandparent’s leave’, a right to leave to assist a daughter younger than 
16 who has given birth, for a maximum of 30 days.401 Taken together, different forms of leave to be able 
to take care of children are more generous than the parental leave provided for in Directive 2010/18/EU. 

In Estonia parental leave is also quite generous, as it can last until the child is three years old. But it is 
also very inflexible, given the fact that it must immediately follow maternity leave (of 70 days) and can 
only be taken by one person at a time.402 It is assumed that the mother continues with the leave and is 
entitled to the monthly parental benefit. If the initial recipient of the parental benefit is the father, it must 
be requested in advance and the mother must prove that she is not on parental leave. As this requirement 
only applies to the mother, this amounts to direct sex discrimination. 

More favourable rules also apply in some countries to parents of a disabled child or a child with a long-
term illness (e.g. Belgium, Croatia, Cyprus, Czechia, Denmark, Finland, France, Greece, Hungary, 
Ireland, Montenegro, Portugal, Serbia, Slovenia, Sweden). For example, in Belgium, if the child is 
disabled, parental leave can be taken until the child is 21 years old and parents of twins are entitled to 
parental leave for each child. In Denmark, parents have a right to leave and a right to compensation for 
loss of income if they look after their mentally impaired child or a child who suffers from long-term illness 
at home. Diverse forms of paid and unpaid leave exist in Greece, including for adoptive parents, foster 
parents and guardians. In Slovenia, parental leave can be extended by 90 days; in Poland an additional 
childcare leave of 36 months can be taken until the child is 18 years old (thus in total 72 months).

In France, the possibility of eight days of paid bereavement leave has been available since 2020 for 
families who have lost a child under 25 years old or a person under their care of the same age,403 which 
is in addition to the paid leave404 for the death of a child.405 This must be taken within a year of the child’s 
death. 

If the period specified in a fixed-term contract ends during parental leave, there is no obligation for the 
employer to prolong the employment relationship in Czechia, but the parental allowance from the state 
social support system continues to be paid without any change.

400  CJEU, 25 February 2021, C-129/20 (XI), ECLI:EU:C:2021/140.
401  Portugal, Article 50 of the Labour Code.
402  The state is changing the system of parental leave and benefits in 2018-2022. The aim is to make it easier to reconcile work 

and family life and to make the system of parental leave and benefits more flexible.

403  France, Act No. 2020-692 of 8 June 2020 on the improvement of rights of workers and the support of families after the loss 
of a child. From 1 July 2020, after the death of their child, employees and civil servants will be awarded bereavement leave 
of seven days, rather than five days, which was previously the case. A supplemental paid leave of eight days will be added 
to the first leave. https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000041975976.

404  France, Article L.331-9 of Social Security Code.
405  France, Article L.3142-1 Labour Code and new Article L.3142-4 Labour Code which extends to five (death of a child) or 

seven days minimum (child under 25) and if the child regardless of his/her age was a parent, amended by Law No 2020-692 
of 8 June 2020.

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4.5.1	 Duration,	payment	and	transferability	of	parental	leave

In all countries, national legislation regarding parental leave is applicable to both the public and the 
private sectors (although not always in the same way). 

The length of this leave varies considerably by country, however. The table below provides an overview.406

Table 3 Parental leave

Country

Parental leave 

Albania

Austria

Belgium

Bulgaria

Croatia

Cyprus

Length

Minimum 4 months until the 
child is 6

Individual right until the child 
is 2408

Payment

Unpaid

Childcare Allowance paid by 
Healthcare Provider available 
(income related or lump 
sum depending on length of 
reception)409

4 months per parent

6 months per parent

Flat rate

Unpaid

6 months if only one parent 
uses the parental leave or for 
single parents. 
8 months combined412 (for the 
first and second child), (30 
months combined for third and 
consecutive children or twins)

18 weeks per child (individual 
right for each parent/23 weeks 
for widow(er)s

Yes, paid by state budget 
at 100 % of the salary, but 
capped at 170 % of the 
budget calculation base 
(currently EUR 757).413

Unpaid

Transferable?

No407

No410

No

In part (up to five months).411

Two months non- transferable

Non-transferable, 
exceptionally only if two 
weeks leave at least have 
been taken, two weeks of 
the remaining leave are 
transferable.

406  This table has been adapted from McColgan, A. (2015), Measures to address the challenges of work-life balance in the EU 

Member States, Iceland, Liechtenstein and Norway, European Commission, pp. 68-69, available at: http://www.equalitylaw.
eu/downloads/3631-reconciliation.

407  Unless one of the parents dies.
408  Each parent is able to reserve three months of leave to take later. Parents are also entitled to share one month of parental 
leave. In this case, the overall period is shortened for this ‘double month’ and parental leave is only granted for 23, rather 
than 24 months.

409  The duration for receiving child care benefits does not necessarily overlap with parental leave periods! 
410  Both parents have the same right to parental leave; they can divide the duration of parental leave between them. An 

agreement on how to do this must be reached. In principle, only one parent at a time can take the leave (with few 
excptions). Fathers can take one month of parental leave parallel to the mother’s maternity leave, which shortens the 
overall duration of the parental leave by one month.

411  Directive 2010/18/EU requires that one of the four minimum months should be non-transferable. In Bulgaria, a longer leave 

is provided and the one-month non-transferable period is respected.

412  Usually 4 months for one parent and 4 months for the other parent, of which two months are non-transferable.
413  Croatia, Article 24b of the Act on Maternity and Parental Benefits.

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Country

Parental leave 

Length

Payment

Czechia414

Until the child is 4

Flat rate social security 
allowance (EUR 11 000, 
CZK 300 000 for the whole 
period)415

Transferable?

Yes

Denmark416

32 weeks per parent. 

100 % salary according to 
some collective agreements 
for 1-32 of the weeks. 

The parents can agree to 
share the 32 weeks of benefits 
between them. 

The father or co-mother may 
begin their 32 weeks of leave 
during the first 14 weeks of 
maternity leave. 

Both parents may choose to 
take part-time leave

Both parents may choose to 
save 8-13 weeks of the leave 
to be taken at a later stage 
before the child is 9 years old. 

Estonia

3 years minus 70 days

Finland

France

26 weeks per child  
(158 weekdays)417 

One year, and can be renewed 
twice until child is 3 years old

Germany

3 years per parent

The parents can take leave 
with benefits on a part-time 
basis – so one parent is on 
leave e.g. Monday-Tuesday, 
and the other parent is on 
leave Wednesday-Friday. 

Benefit for 32 weeks per child: 
EUR 592 per week.

The benefits can be taken at 
a lower rate, so the benefits 
are extended to last up to 46 
weeks. 

The weeks of benefits can be 
shared between the parents. 

100 % paid (ceiling exists) for 
435 days within the period, 
until the child turns three 
years old, the rest is unpaid

Yes, the parents can agree the 
timing, but only one parent at 
time.

70 %, capped 

Yes418

Flat rate, period depends on 
the first child (six months, one 
year if the parents share the 
leave), second child (additional 
six months), subsequent 
children.

67 % up to 100 % for 
14 months (when 2 months 
are taken by the other parent), 
then unpaid, 4 additional 
months paid when both 
parents are working part-time

Yes. Possibility to extend the 
parental leave if the other 
parent takes six months.

No, but the parental 
allowances depend on the 
sharing of parental leave 
between the parents.

In the Czech Republic parental leave should be distinguished from parental allowance.

414 
415  The parental allowance has been significantly increased (Act No. 363/2019, amending Act No. 117/1995, on state social 
support, the amendment enters into force as of 1 January 2020), but only for those who will have children in the future, 
or who are still taking care of at least one child. It is not possible to increase the allowance for parents who have already 
claimed the parental allowance and returned to work, even if their child is, for example, only 2.5 years old. Parents who had 
claimed EUR 8 500 (CZK 220 000) could not claim the remaining EUR 2 500 (CZK 80 000), as they are no longer getting the 
allowance.

416  Amendment to the Act on Maternity and Parental Leave has been submitted in December 2021, proposal 104 of 

22 December 2021, expected to come into force 1 July 2022. The amendment redistributes the weeks of maternity, 
paternity and parental weeks with a view to implement Articles 5 and 8 in the Work life balance directive.

417  The planned family leave reform would introduce a leave period of about 14 months for both parents (or, the only parent 
in case of single parent families), of which about 6.6 months would be non-transferable for each parent, and 69 weekdays 
would be transferable: Ministry of Social Affairs and Health (2020) Perhevapaauudistus tähtää perheiden hyvinvointiin ja 
tasa-arvon lisäämiseen (Reform of family leave aims at family welfare and increased equality), press release 2 February 2020; 
https://valtioneuvosto.fi/artikkeli/-/asset_publisher/1271139/perhevapaauudistus-tahtaa-perheiden-hyvinvointiin-ja-tasa-
arvon-lisaamiseen.

418  According to parental agreement (Chapter 9, Section 8 of the Sickness Insurance Act).

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Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

Country

Parental leave 

Length

Payment

Transferable?

Greece419

4 months per parent  
(9 in the public sector)

Unpaid (private sector); fully 
paid (public sector)

Hungary

3 years until the child is 
10 years old (10 years under 
certain circumstances, e.g. 
chronically ill or severely 
disabled children) 

Unpaid leave (but state 
benefits may be available) 

Yes, fully transferable in public 
sector (no minimum period 
which is not transferable).
Not transferable in the private 
sector.

Yes, it is a joint right for the 
parents.
Under certain circumstances, 
insured (working / not retired) 
grandparents may be eligible 
for parental leave as well, 
provided that the child is 
being raised in his/her parents’ 
household

Both parents of children 
under 16 years are entitled 
to additional 2-7 days of paid 
leave annually, depending on 
the number of children.

‘Childcare fee’ 70 % of pay 
(capped) until the child is 2, 
then very low flat rate

Iceland

4 months per parent

Unpaid

Ireland

26 weeks per parent 
(since 1 September 2020); 
In addition, each parent is 
entitled to five weeks parents’ 
leave 

Italy

10/11 months for both parents 
per child. Single parents: 10 
months

Latvia

18 months per parent (under 
the Labour Law)

26 unpaid leave Parents’ 
benefits.420

30 % (social security 
allowance) for a total of six 
months for both parents for 
the first six years of the child’s 
life

60 % for one of the parents 
who stopped working (under 
social security law, until child 
attains 12 months of age)421

Liechtenstein

4 months per parent

Unpaid

An independent entitlement by 
each parent. Non-transferable.

No, except up to 14 weeks of 
parental leave if both parents 
are employed by the same 
employer. 
The five weeks parent’s leave 
is non-transferable.

In part (two months)

No

No

419  After the cut-off date (01.01.2021), parental leave of four-months to be taken up to the age of eight years of the child was 
provided by Article 28 Act 4808/2021, implementing Articles 5 and 8 of Directive 2019/1158. See EELN flash report of 
09.07.2021, https://www.equalitylaw.eu/downloads/5444-greece-greece-transposes-directive-2019-1158-on-work-life-
balance-141-kb.
Ireland, Parent’s Leave and Benefit Act 2019. The provisions apply to a parent who fulfils eligibility requirements as the 
parent of a child adopted or born on or after 1 November 2019. The two weeks’ leave can be extended to a maximum of 
nine weeks by ministerial order.

420 

421  Alternatively, if a parent would like to receive parental allowance until a child is 18 months old, then the amount of 

allowance will be 43.75 % of the gross salary. Article 106(4) of the Law on Maternity and Sickness Insurance, stipulates 
since the 1 January 2020 that if a woman gives birth to another child within a period of three years while still caring for 
a previously born child, she is entitled to parental allowance for the second child, which is not lower than that for the 
previous child: Grozījumi likumā ‘Par materniātes un slimības apdrošināšanu’, Official Gazette No. 255A, 19 December 2019. 
Such provision is obviously directly discriminatory against fathers, since they might well be in a similar situation.

107

Country

Parental leave 

Length

Payment

Lithuania

Until the child is 3

Allowance up to two years 
77.58 % until the child is one 
year old. Or 54.31 % after the 
end of the maternity leave 
until the child reaches one 
year and 31.03 % until the 
child is two years old, subject 
to minimum and maximum 
ceilings. 

4 or 6 months per parent 
full-time; 8 or 12 months half-
time; or flexible leave over a 
period of 20 months

Social security benefit, 
proportion of the wage, min 
EUR 1 922, max EUR 3 200 
(for full-time leave)

Luxembourg

Malta

Montenegro

4 months per parent (12 
months per child in the public 
sector)

70 days after the birth of the 
baby until the expiry of 365 
days 

Transferable?

Yes

No

No

Yes, both parents have the 
right to equal parts of the 
parental leave. If one parent 
stops parental leave, the other 
parent is entitled to use the 
unused part after the expiry 
of 30 days from the date that 
the parent started to use the 
parental leave.

No

Yes, the father can use the 
leave only if the mother does 
not use it

In part. A minimum of 15 
weeks is reserved for the 
mother (6 weeks after birth 
and 9 weeks as the mother 
wants = mother’s quota) 
and 15 weeks for the father 
(father’s quota).423

Unpaid

100 % paid (when having 
worked continuously for 12 
months and more, before the 
leave)

70 % (when having worked 
continuously between 6 and 
12 months before the leave)

50 % (between 3 and 6 
months)

30 % (3 months or less)

Unpaid, but collective 
agreements may impose a 
(partially) paid leave (public 
sector)

Paid by the state

100 % for 46 weeks or 80 % 
for 56 weeks, capped

Netherlands

26 weeks per parent

North 
Macedonia

Norway

52 weeks (78 weeks for 
multiple childbirth) – father 
is entitled to parental leave 
if the mother does not take 
maternity leave 

12 months fully paid, 12 
months each of the parents 
unpaid422

Poland

32 weeks (34 in case of 
multiple birth)

6 (or 8) weeks, 100 % 
allowance, then 60 % for the 
remaining weeks 

Yes

In addition: 36 months 
childcare leave

Unpaid 

422  The legislation does not apply to matters concerning the Parliament.
423 

If the parents chose the 100 % remuneration rate, If they choose the reduced rate with 80 % payment, 19 weeks are 
reserved for each of the parents. The remaining part of the leave may be shared between the parents as they deem fit.

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Country

Parental leave 

Length

Payment

Portugal

3 months (full-time) per 
parent, 12 months (part-time) 
(parental leave in strict sense)

Romania

2 years per child 

25 % (allowance during the 
first three months, if parental 
leave is taken immediately 
after maternity leave)

85 %, cannot be lower than 
85 % of the national minimum 
wage

Transferable?

No

Transferable, except for one 
month that is mandatory for 
the parent who did not take 
the parental leave

Serbia

3 months after the birth 
until 365 days after 
commencement of maternity 
leave (2 years for every third 
and subsequent child)

Slovakia

Until the child is 3424

No

No

EUR 850 for the first child; 
EUR 2 000 for the second 
child; EUR 12 200 for the 
third child; EUR 18 300 for 
the fourth child (all in 24 
instalments)

Flat rate (EUR 220.70 for one 
child, EUR 337.50 for twins 
and EUR 405 for triplets) 
or EUR 370, if previously a 
maternity allowance or similar 
benefit for care of this child 
was received (EUR 462.50 
for twins and EUR 555 for 
triplets)425

Slovenia

260 days per child 

100 % social benefits, capped 
(minimum and maximum)

In part

Spain426

Sweden

Turkey

United 
Kingdom

Until the child is 3427
Leave can take different forms

Unpaid 

No

480 days (includes maternity 
leave) per child. Divided 
equally between the parents.

80 %, capped for 390 days, 
then flat rate at EUR 17 
(SEK 180)

In part. A minimum of 90 days 
is reserved for the mother 
(mother quota) and 90 days 
for the father (father quota).

No regulation on parental 
leave. (forms of unpaid leave 
related to children for women 
employees; family-related 
leave or leave related to 
childcare for civil servants)

18 weeks per parent

Unpaid

No

4.5.2	 Right	to	return	to	the	same	or	an	equivalent	job

According  to  Clause  5(1)  of  Directive  2010/18/EU,  at  the  end  of  the  parental  leave  workers  have  the 
right to return to the same or equivalent job.428 Workers are entitled to rights acquired (or in the process 

424  Six if disabled.
425  Parental allowance increases by 25 % per child in the case of multiple births and is reduced by 50 % if older children do not 

regularly attend compulsory school. 

426  From 2021, see the information on maternity (Table 2) and paternity leave (Table 4). At the end of the transition period 

in 2021, birth-related leave (16 weeks) will be fully equalised between both parents. Birth-related leave as introduced by 
Royal Decree 6/2019 combines features of paternity leave and parental leave as defined and regulated in Articles 3 to 5 of 
Directive 2019/1158.
In addition, workers with children younger than nine months (on request up to 12 months if both parents exercise the right 
simultaneously), including adoptive and foster parents, and civil servants with children younger than 12 months, have the 
right to paid leave of one hour per day.

427 

428  See, for example, CJEU 7 September 2017, C-174/16 (H.), ECLI:EU:C:2017:637.

109

of being acquired) on the date on which parental leave starts. These rights must be maintained as they 
stand until the end of parental leave (Clause 5(2)).429 

In  most  countries  where  parental  leave  exists,  Clause  5(1)  and  (2)  has  been  implemented  explicitly. 
However,  there  is  no  such  legal  right  in  Albania.  In  the  Netherlands,  there  is  no  explicit  legal  right 
to return to the same or a comparable job after taking parental leave. The specific protection against 
unfavourable treatment related to parental leave is considered sufficient by the Dutch government. It is 
submitted that a specific legal provision would be a better way to implement Clause 5(1) and (2). This 
clause has not been explicitly implemented in Belgium either, but this seems not to be problematic in 
practice in the public sector. In the private sector, collective agreements might not take into account the 
period of parental leave for example for Christmas bonuses. 

In  Hungary,  the  Labour  Code  does  not  expressly  guarantee  the  right  of  a  parent  to  return  to  their 
original job or an equivalent job at the end of parental leave. A cumulative interpretation of the relevant 
regulations, however, leads to the conclusion that such a right is provided. The German Federal Parental 
Leave and Parental Allowances Act does not explicitly cover the right to return to one’s former job or to an 
equivalent post.430 The German Women Lawyers’ Association points out that the lack of a right to return 
to work after parental leave violates Directive 2010/18/EU.431 

In Spain, a worker has the right to return to the same job within one year of unpaid leave and to a similar 
job after one year of unpaid leave. In the United Kingdom, the right to return to the same job exists for 
employees from a period of no more than four weeks’ leave. 

In  France,  workers  returning  from  parental  leave  are  entitled  to  training  if  working  techniques  and 
methods have changed. In the public sector, parents who take parental leave keep their right to career 
advancement for the subsequent five years. This five-year period will be assimilated to effective work.432 
In 2019, the Court of Cassation qualified the refusal to return an employee to the equivalent job after 
maternity leave followed by parental leave as indirect sex discrimination.433 Irish law explicitly addresses 
specific situations, such as a transfer of undertaking. In Latvia, the obligation to provide the same or/and 
equivalent job is absolute, there are no exceptions even if the post is abolished on account of structural, 
organisational or other objective reasons.

4.5.3	 Protection	against	less	favourable	treatment	or	dismissal.434 

Workers  who  take  parental  leave  must  be  protected  against  less  favourable  treatment  and  dismissal 
(Clause 5(4)). If a worker is dismissed unlawfully, the calculation of fixed damages and of indemnity must 
be based on the full-time remuneration prior to the start of the (part-time) parental leave.435

In most countries, employees are specifically protected against unfavourable treatment and dismissal 
related  to  applying  for  and/or  taking  parental  leave.  However,  there  is  no  such  right  in  Albania.  In 

429  See on social security entitlements Clause 5(5) of Directive 2010/18/EU and CJEU Judgment of 16 July 2009, Gómez-Limón, 

C-537/07, ECLI:EU:C:2009:462.

430  See Nassibi, G. et al. (2012), ‘Geschlechtergleichstellung durch Arbeitszeitsouveränität’ (Gender Equality and Working Time 

Sovereignty), Zeitschrift des Deutschen Juristinnenbundes, pp. 111-116. 

431  See German Women Lawyers‘ Association (2014), ‘Stellungnahme vom 26.06.2014 zum Entwurf eines Gesetzes zur 

Einführung des Elterngeld Plus mit Partnerschaftsbonus und einer flexibleren Elternzeit im BEEG’, https://www.djb.de/
verein/Kom-u-AS/K4/st14-10/.

432  France, Act No. 2019-828 6 August 2019 on the transformation of the civil service and Decree No. 2020-529 of 5 May 2020.
433  France, Court of Cassation, Social chamber 14 November 2019 No. 18-15682, https://www.courdecassation.fr/

434 

jurisprudence_2/arrets_publies_2986/chambre_sociale_3168/2019_9139/novembre_9548/1567_14_43913.html.
 See the report produced by the European network of legal experts in the field of gender equality, Masselot, A. (2018) 
Family leave: enforcement of the protection against dismissal and unfavourable treatment, European Commission, available 
at: https://www.equalitylaw.eu/downloads/4808-family-leave-enforcement-of-the-protection-against-dismissal-and-
unfavourable-treatment-pdf-962-kb.

435  See the CJEU Judgment of 22 October 2009, Christel Meerts v Proost NV, C-116/08, ECLI:EU:C:2009:645 and Judgment of 

27 February 2014, Lyreco Belgium NV v Sophie Rogiers, C-588/12, ECLI:EU:C:2014:99.

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Bulgaria, the anti-discrimination provisions apply, which prohibit discrimination on the ground of family 
status. In Czechia, Latvia, Liechtenstein, Slovakia and Turkey, the Employment Act protects against 
any kind of adverse treatment because of the use of rights, thus including the right to parental leave.436 
This  includes,  in  Czechia,  a  prohibition  on  giving  notice  during  the  protected  period,  thus  also  during 
parental leave. In Hungary, taking different forms of parental leave (including maternity leave, parental 
leave and parent’s leave to take care of a sick child) does not terminate the employment relationship, 
therefore the employment contract remains in force during the leave.437 Dismissal is prohibited during 
parental leave. The protection is broad in Montenegro, as during periods of absence from work in order 
to care for a child, maintain a healthy pregnancy or use maternity, parental, adoptive or foster parental 
leave, the employer may not dismiss the employee. In the case of an employee whose fixed-term labour 
contract ends during the period when they are using their right to maternity, i.e. parental leave, the period 
of validity of the fixed-term labour contract shall be extended until the end of the use of the right to such 
leave.

In Belgium the protection starts from the date when the employer has received notice until three months 
after the end of the leave. In Finland, the employer may dismiss a person on maternity, paternity, parental, 
adoption or care leave only if the employer’s activities cease completely. The situation is different in the 
Netherlands, where dismissal of an employee during parental leave for reasons not connected to the 
leave is not explicitly prohibited.

4.6	 Paternity	leave

Most countries provide fathers with the right to paternity leave, though in many countries this leave is 
very short. The Work-life Balance Directive 2019/1158 adopted in 2019 requires that fathers be entitled 
to a paid paternity leave of at least 10 working days to be taken on the occasion of the birth of the child 
(Article 4).438 The payment or allowance must at least be equivalent to sick pay and may be subject to a 
ceiling. The right to a payment or allowance can be subject to periods of previous employment, but not 
more than six months before the expected date of birth (Article 8(1) and (2)).

In  Portugal,  the  compulsory  part  of  the  paid  ‘initial  part  of  the  parental  leave  just  for  the  father’  is 
now 20 days, and the non compulsory part is 5 days. In 2018, 77.2 % of working fathers enjoyed the 
compulsory period of their paternity leave, but only 39.9 % also enjoyed the non-compulsory period of the 
leave.439 In Spain, Royal Decree 6/2019 of 1 March 2019 modified the regulation of paternity leave. As of 
April 2019, maternity and paternity leave no longer exist, but have been replaced by a single birth-related 
leave (permiso	por	nacimiento) with similar features for each parent.440 

The table below provides an overview of the current length and level of payment of paternity leave in 36 
countries.441

In Lithuania, the approach is similar. 

436 
437  Hungary, Act I of 2012 on the Labour Code (2012. évi I. törvény a munka törvénykönyvéről), 6 January 2012, Articles 127-128, 130.
438  Such leave is intended for fathers, or where and insofar as recognised by national law, equivalent second parents and 

irrespective of the marital or family status, as defined by national law. Such leave shall not be subject to a period of work or 
length of service qualification. 

439  CITE Report 2018, pp. 76-79.
440  There is a transition period until 2021, when both parents’ leave periods will be fully equalised.
441  This table has been adapted from McColgan, A. (2015), Measures to address the challenges of work-life balance in the EU 
Member States, Iceland, Liechtenstein and Norway, European Commission, p. 65, available at: http://www.equalitylaw.eu/
downloads/3631-reconciliation.

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Table	4	Paternity	leave

Country

Paternity leave

Albania

Length

3 days442

Austria

0-31 days444

Payment

Paid443 (100 % for 3 days, then 80 % for the days 64-150, and 50 % for 
the remaining days of paternity leave)

EUR 700 – deducted from the father’s Child Care Benefit at a later stage, if 
he decides to take it. 

Belgium

15 days (birth 
leave)

100 % for 3 days, then 82 % (this is equal to 100 % net as no 
contributions are deducted from social security benefits)

Bulgaria

15 days

Croatia

Cyprus

Czechia

0

2 weeks

5 days445

Denmark446

2 weeks

90 %

N/A

72 % (paternity benefit)

70 % (benefit paid from sickness insurance)

100 % salary according to some collective agreements. 
or
Benefit for 2 weeks at the level of sick leave benefits: EUR 592 per week.

Estonia

Finland

France

Germany

Greece448

Hungary

Iceland

Ireland

30 calendar days 
until the child is 
three years old

100 % (same calculation as for the parental benefit, ceiling exists), could 
be taken at the same time when mother is on maternity leave or on 
parental leave

70 % (capped) 

100 % (capped)

54 days 

25 days447
4 calendar days 
that have to be 
taken right after 
the birth of the 
child and a period 
of 21 calendar 
days

0

2 days449

5 days450

N/A

100 %

100 %

6 months451

80 % (capped)

2 weeks

EUR 245 gross per week

442  The insured father or adoptive father has the right to take care of the child after the 63-day post-partum period, if this right 

is not exercised by the mother or there are no conditions for the mother to benefit. This leave can last for 267 days.

443  Labour Code, Article 96(3) and point 9(c) of the Recast DCM No. 511/2002 on the duration of work and leave in state institutions.
444  Civil servants are entitled to four weeks’ leave; certain groups of employees in the private sector are entitled to leave 
periods of varying lengths according to some collective agreements or to 28 to 31 days of ‘family time’, according to a 
written agreement with the employer. The ‘paternity’ leave is an early parental leave, which fathers can take immediately 
after the birth of the child.

445  Paternity leave was introduced in Law 148/2017, which entered into force on 1 February 2018.
446  Amendment to the Act on Maternity and Parental Leave has been submitted in December 2021, proposal 104 of 

22 December 2021, expected to come into force 1 July 2022. The amendment redistributes the weeks of maternity, 
paternity and parental weeks with a view to implement Articles 5 and 8 in the Work life balance directive.

447  32 in the case of multiple births. Article L.1225-35 of the Labour Code, amended in 2020.
448  After the cut-off date (01.01.2021), Directive 2019/1158 on work-life balance was transposed by Chapters A and C, Part III, 
of Act 4808/2021 and paternity leave was fixed at 14 working days fully paid by the employer. See EELN flash report of 
09.07.2021, https://www.equalitylaw.eu/downloads/5444-greece-greece-transposes-directive-2019-1158-on-work-life-
balance-141-kb.

449  Five days for the military.
450  Seven in the case of twins.
451  Act 140/2020, Article 8, came into effect on 1 January 2021, replacing the Act on Maternity, Paternity Leave and Parental 

Leave No. 95/2000. In addition, parents have a joint entitlement to an additional two months, which either parent may take 
in its entirety or the parents may divide between them. Only six weeks of this period are transferable between the parents. 
If fathers do not use the rest of their full leave, it is lost.

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Country

Paternity leave

Italy

Payment

100 %

Length

10 days 
compulsory leave, 
plus one day 
optional452

Latvia

10 calendar days

80 %

Liechtenstein

0

N/A

Lithuania

Luxembourg

Malta

Montenegro

30 calendar days, 
taken before child 
reaches 1 year of 
age. 

10 mandatory 
leave days

1 day in private 
sector and 5 days 
in public sector

By collective 
agreement. 
Usually 5 working 
days.

Netherlands

North 
Macedonia

Norway

5 days

7 days

2 weeks453

Poland

2 weeks

Portugal454

Romania

Serbia

Slovakia

Slovenia

Spain456

20 days 
compulsory, to 
be taken in the 
child’s first 6 
weeks (5 days of 
which to be taken 
when the mother 
gives birth); and 5 
optional additional 
days

5/15 days455

7 days

0

30 days

16 weeks birth 
leave457

Capped (EUR 2 240 monthly), minimum payment is EUR 234.

100 % (capped)

100 % 

100 %

100 %

100 %

Unpaid, but some employers offer pay on a voluntary basis or pay is 
required by collective agreement. Fathers can also take the ‘father’s quota’ 
of the parental leave, which is paid (see previous section)

100 %

100 %

100 %

100 %

N/A

100 % 

100 % 

452  This leave was originally conceived as an experimental measure for 2013-2015 and was then extended by Article 1, 
Paragraph 354 of Law 232/2016 for the period 2017-2020 and by Article 1, Paragraph 363 of Law 178/2020 to 2021. 
In addition to the father’s quota of parental leave (15 weeks of benefit period if parents choose the 100% rate; 19 weeks if 
they choose the 80% rate).

453 

454  Called ‘initial parental leave just for the father’: Article 43 of the Labour Code.
455  Fifteen days if the father has completed a course in infant care.
456  Following the reform introduced by Royal Decree 6/2019 of 1 March 2019. Transition period until 2021.
457  The new birth-related leave is granted to the biological mother and to the ‘other parent’, in order to include same-sex 

couples. Extendable in case of a child with disabilities, multiple births or hospitalisation of the child.

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Country

Paternity leave

Length

Payment

Sweden

10 days (in 
addition to the 90 
non-transferable 
days of parental 
leave)

80 % capped (in addition to 90 days of benefits at income-replacement 
level of parental leave). The eligible person is the other parent (father or 
other)

Turkey

Employees: 5 days

100 %

Civil servants: 10 
days (plus optional 
24 months)

Civil servants: 100 % (optional 24 months unpaid)

United 
Kingdom

2 weeks

Flat rate458

4.7	 Time	off	and	care	leave

The Parental Leave Directive 2010/18/EU requires that workers are entitled to time off on grounds of 
force majeure for urgent family reasons in cases of sickness or accident making the immediate presence 
of  the  worker  indispensable  (Clause  8).  The  Work-life  Balance  Directive  2019/1158,  which  has  to  be 
implemented by 2 August 2022, has a similar provision (Article 7) and in addition introduces an unpaid 
carers’ leave of five working days per year (Article 6). This new carers’ leave enables carers to provide 
care or support to a relative or to a person who lives in the same household as the worker and who is 
in  need  of  significant  care  or  support  for  a  serious  medical  reason  (Article  3(1)(c)).  The  protection  of 
workers taking this carers’ leave is broader than in case of time off for force	majeure  as required by 
Directive 2010/18. With the Work-life Balance Directive 2019/1158, the employment rights of workers 
taking carers’ leave will have to be maintained (Article 10), these workers have to be protected against 
discrimination  (Article  11)  and  enjoy  protection  against  dismissal  (Article  12).  Articles  10  and  11  also 
apply to time off in case of force	majeure as defined in Article 7 of Directive 2019/1158. The same is 
true for provisions which apply to the whole Directive 2019/1158 such as the role of the Equality bodies 
(Article 15).459

In national law, the distinction between the right to take time off for different (often specified) reasons and 
the new carers’ leave in Article 6 of Directive 2019/1158 is not always clear. In some countries, time off 
in case of force	majeure can be taken for a longer period as is the case for example in Portugal. What is 
defined then as time off in case of force majeure might be (very similar to) a carers’ leave as defined in 
Article 6 of Directive 2019/1158 (see table 6).

Time  off  in  case  of  force	 majeure  as  defined  in  Clause  8  of  the  Parental  Leave  Directive  2018/10  is 
not available in all Member States, for example in Italy and in Montenegro, there is no such provision 
in the legal system. In Greece and in Lithuania, there is no general provision on time off for urgent 
family reasons in case of sickness or accident, although there are several provisions of special forms of 
leave and time off on specific grounds. Similarly, in the United Kingdom, different kinds of situations of 
unexpected emergencies are mentioned in which employees are entitled to time off as is ‘reasonable’ in 
order to take action that is ‘necessary’. In Turkish law, the term ‘force	majeure’ is not legally defined. It is 
understood to mean external obstacles that are not anticipated as of the date of the contract, are beyond 
the party’s control, are not caused directly or indirectly by the fault or negligence of the party seeking 
relief, and that prevent or delay the affected party from performing their contractual/legal obligation(s). 

458  At the same rate as statutory maternity pay.
459  These provisions have to be implemented by 2 August 2020 (Article 20(1)).

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In Iceland, no right to time off for force	majeure exists and there is no care leave. However, there is a 
right of parents to financial assistance when they are not able to pursue employment or studies due to 
the special care required by their children who have been diagnosed as suffering from chronic illnesses 
or  severe  disabilities.  The  amount  is  80  %  of  the  employee’s  average  aggregate  wages,  based  on  a 
12-month period ending two months prior to the diagnosis of the child.

Table 5 below provides an overview of time off for force majeure that corresponds most closely to the 
provisions as defined in Directives 2010/18 and 2019/1158 on time off on grounds of force majeure for 
urgent family reasons in cases of sickness or accident which make the immediate presence of the worker 
indispensable. Such time off is in many countries rather short, often paid and can in many countries be 
taken for more reasons than for urgent family reasons due to only accident or sickness. Table 6 provides 
an overview of leave that corresponds most closely to carers’ leave as defined in Directive 2019/1158.

Table	5	Availability	of	time	off	for	force	majeure

Country

Purpose(s)	of	time	off Maximum period of 

Compensation?

Albania

Time off for different 
specific reasons

Austria

Short-term leave in 
case of sudden illness 
of a child or relative

time	off

5 days paid leave in 
case of loss of spouse/
husband or some family 
members

Two weeks for a sick 
child; one week for a 
relative living in the 
same household

100 % wage

100 % paid

Other relevant 
information

Additional period 
of 30 days per 
year unpaid

Force	majeure 
leave is extended 
to parents who 
are admitted into 
in-patient care 
together with 
their sick children. 
This leave may 
also be taken 
on a day-to-day 
basis.

Entitlement to 
social security 
cover is 
maintained

Belgium

Bulgaria

In the private sector: 
10 days per year (not 
necessarily related to 
childcare). 

In the public sector, 
in case of illness or 
accident of a close 
relative (e.g. spouse, 
child).

Time off for urgent 
family reasons in the 
event of the death of 
a parent, child, spouse, 
sibling, or parent of the 
other spouse or other 
direct-line relatives.460

Unpaid leave which can 
be used as time off for 
force	majeure461

10 days a year 

Unpaid

4 days a year

100 % paid

Up to two working days

Paid (collective 
agreement or by 
agreement between 
the employer and the 
employee)

No requirements 
or conditions for 
granting these 
leaves for force	
majeure

Up to 30 days a year

Unpaid

Subject to 
consent of the 
employer 

460  Bulgaria, Article 157 para. 1, p. 3 of the Labour Code.
461  Bulgaria, Article 160 of the Labour Code.

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Country

Purpose(s)	of	time	off Maximum period of 

Compensation?

Croatia

Time off for important 
personal reasons (e.g. 
wedding, birth of a 
child, severe illness or 
death of an immediate 
family member)

time	off

Up to 7 days per year, 
unless stated otherwise 
in a collective agreement

100 % paid

Other relevant 
information

In addition, 
carers’ leave for 
urgent family 
reasons in case 
of accident or 
illness making 
the immediate 
attendance 
of the worker 
indispensable 
(with social 
benefits)

Cyprus

Czechia

Denmark

7 days per year

No

Reasons of force 
majeure; urgent family 
matters related to 
sickness or accident 
of a dependent family 
member 

Care for ill family 
member or child 
younger than 10 years

No limit per year for care 
of ill child younger than 
10 years462

Time off on grounds 
of force	majeure if it 
is family-related for 
urgent reasons in case 
of sickness or accident.

Statutory act on force 
majeure situations for 
children or spouse – not 
specified, but as long as 
it is ‘urgent’. No annual 
maximum.

Time off for the child’s 
first one or two days 
of sickness is provided 
in some collective 
agreements.

Collective agreements 
may provide a right to 
take 1 or 2 days off in 
case of sick children. No 
annual maximum.

Caring benefit (60 % 
of daily salary) 
paid from sickness 
insurance

If provided in collective 
agreement: For 
childrens’ first one or 
two days of sickness, 
100 % salaries.

Some collective 
agreements provide a 
legal basis for 100% 
salaries in other urgent 
family matters. The 
Act on leave in force 
majeure situations 
does not address 
salaries. This has not 
been addressed in the 
case law under the act. 
Depending on the type 
of employment and 
the contract provisions, 
the employer would 
be allowed to withhold 
salaries for the time 
off for urgent family 
matters.

If the situation of 
leave becomes more 
permanent, the parent 
can apply for official 
leave for family 
matters, as described 
in Table 6 below.

462  Provided that the employee provides a medical certificate verifying the illness of the child, there are no maximum limits per year.

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Other relevant 
information

An employee 
should inform 
employer and 
presume a 
duration. Should 
be agreed with 
the employer

Based on 
agreement, 
but involves 
protection against 
dismissal

Country

Purpose(s)	of	time	off Maximum period of 

Compensation?

Estonia

Finland

France

Germany

Time off for urgent 
family reasons, 
unintentional reason 
arising from the 
employee 

Care for compelling 
unexpected family 
reasons related to 
illness or accident

Force	majeure 
bereavement leave for 
families who have lost 
a child

Paid bereavement 
leave for families 
who have lost a child 
under 25 years old or 
a person under their 
care in addition to the 
bereavement leave for 
families who have lost 
a child 

Emergency childcare 
leave 

time	off

A reasonable period 
(case by case)

100 % paid

Short temporary leave

Unpaid, but some 
collective agreements 
provide pay 

7 days

7+8 =15 days fully paid 
by Social Security and 
employer art. L3142-2 
Labour Code463

8 days 

5 days paid

Up to 10 working days 
per year for each child 
(single parents 20 days). 
Maximum for more 
children 25 days (single 
parents 50 days) 

70 % of income 
(statutory health 
insurance scheme)

Care for a close 
relative464

Up to 10 days

70 % of the income 
(statutory health 
insurance scheme)

The employee 
has to inform 
the employer 
immediately and 
present a medical 
report

Greece465

No general provision 
on time off for force	
majeure, but specific 
provisions exist

463  Act No. 2020-692 of 8 June 2020 on the improvement of rights of workers and the support of families after the loss of a child. 

From 1 July 2020, after the death of their child, employees and civil servants are awarded bereavement leave of seven days, 
rather than five days, which was previously the case. A supplemental paid leave of eight days is be added to the first leave.

464  According to the latest change within the relevant period in the context of the COVID-19 pandemic, the entitlements 

for the year 2020 included 15 working days for each child (30 days for single parents) with an absolute maximum of 35 
working days (70 for single parents): Act on the future of hospitals (Krankenhauszukunftsgesetz) Act of 23 October 2020, 
Official Journal 2020 (BGBl. I no 45), p. 2208.

465  After the cut-off date (01.01.2021), a force majeure leave was provided by Article 30 Act 4808/2021, implementing Article 7 

of Directive 2019/1158, https://www.equalitylaw.eu/downloads/5444-greece-greece-transposes-directive-2019-1158-on-
work-life-balance-141-kb.

117

Country

Purpose(s)	of	time	off Maximum period of 

Compensation?

Other relevant 
information

Hungary

Iceland

Ireland

Italy

Latvia

time	off

Not specified

Unpaid

Time off for force	
majeure for the 
duration of personal or 
family circumstances 
of special concern, or 
justified by unavertable 
causes

In the event of death of 
a relative 

2 days 

100 % 

100 %

3 days in any period of 
12 consecutive months 
or 5 days in a period of 
36 months

None available

Time off for force	
majeure where 
for urgent family 
reasons owing to 
injury or illness, the 
immediate presence 
of the employee is 
indispensable 

No provisions on time 
off for force	majeure

In case of force 
majeure 

Liechtenstein In case of force 

Lithuania

Luxembourg

majeure for urgent 
family reasons 

No provisions on time 
off for force	majeure, 
but time off for specific 
reasons

Care for family reasons 
if a child is sick is 
applicable in case of 
force	majeure

Malta

No carers’ leave in 
national law. 

But in public service: 
responsibility leave to 
take care of dependent 
elderly parents, sons 
and daughters, or the 
spouse/partner in a civil 
union and leave for a 
special reason including 
work-life balance 
reasons.

No provisions on time 
off for force	majeure

Time off for force	
majeure for urgent 
family reasons in case 
of sickness or accident 

Montenegro

Netherlands

Not limited, however, this 
should be ‘short period 
of time’

Yes (100 %)

1 to 3 days, several 
times a year

Yes (80 %), but 
eligibility requirement

Only condition is 
that the employee 
informs the 
employer

Evidenced 
by medical 
certificate

Unpaid

Yes, 100 %

Maximum 12 days for a 
child younger than 4; 18 
days for a child between 
5 and 13; 5 days for a 
child between 14 and 18

Unpaid

In case of responsibility 
leave, for 12 months, can 
be renewed on yearly 
basis; in case of leave 
for a special reason 3 
months.

Has to be 
approved. Medical 
certificate is 
required in case 
of care of elderly 
parent/spouse or 
partner.

Short period, length 
of the leave must be 
reasonable

Yes, 100 %

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Other relevant 
information

May be taken 
part-time

Country

Purpose(s)	of	time	off Maximum period of 

Compensation?

North 
Macedonia

Norway

Provision that ‘if a 
worker cannot do his 
work due to force	
majeure, he has the 
right to half of the 
salary to which he 
would be entitled if he 
was working’. 

Time off for force	
majeure for urgent 
family reasons in case 
of sickness or accident

Poland

Portugal466

Romania

Serbia

Slovakia

Care of at least one 
child younger than 14

Time off on grounds 
of force majeure for 
different family reasons

Public service: days 
off for certain reasons 
(marriage, birth of a 
child etc.) 

Time off for different 
reasons (marriage, 
childbirth, serious 
illness of a family 
member etc.)

Time off (force majeure) 
for urgent family 
reasons in case of 
sickness or accident.

When accompanying 
the mother of the 
employee’s newborn 
child to and from the 
maternity hospital 

time	off

Not specified

Yes, 50 %

Yes, 100 %

Paid leave in the case of 
sickness of a child below 
the age of 12 year 10 
days per calendar year 
and a maximum of 15 
days if the employee 
has more than two 
children. Single parents 
are entitled to double the 
amount of leave.

2 days per year

100 %

Different time limits 30 
days per year

No

Different time limits (up 
to 5 days)

Yes, 100 %

Up to 5 days per year

100 %

No limit on number of 
times per year

Allowance under Social 
Insurance Act

(i) Maximum 7 days per 
calendar year

Yes

When accompanying: 
 – a family member 

(ii) Maximum 10 days 
per calendar year

Yes

to a medical facility 
for examinations 
or treatment upon 
sudden disease or 
accident, and also for 
planned examinations 
and treatment

 – a disabled child to a 
social care facility or 
special school

466  These are short leave of absence related to pregnancy, childbirth and to the care of children.

119

Country

Purpose(s)	of	time	off Maximum period of 

Compensation?

Other relevant 
information

Slovenia

Spain

Sweden

Turkey

time	off

100 %

Up to 7 days per year

100 % of average 
monthly full-time 
salary from the last 
three months

Time off (force	majeure) 
for urgent family 
reasons in case of 
sickness or accident

Absence from work 
due to personal 
circumstances (such as: 
 – marriage, 
 – the death of a spouse 
or cohabitant partner 
or the death of a 
child, an adopted 
child or a child of 
the spouse or the 
cohabitant partner; 
 – the death of parents; 
 – a serious accident 

suffered by 
the worker or 
accompanying child 
to school on his first 
day of primary school 
etc.)

Time off in some 
situations (e.g. death of 
a relative): up to 4 days 

2 days. 4 days if the 
worker has to travel 
outside the province

Time off due to urgent 
family reasons that 
require the presence of 
the employee

No explicit time limit, but 
not for a long time

No, but most collective 
agreements include a 
certain number of paid 
days, usually 10 days

Notice and 
justification 
required

Collective 
agreements on 
compensation, 
usually require 
a qualification 
period 

Family/parental related 
reasons are not 
considered as force	
majeure under Turkish 
law. 
However sabbatical 
leave for civil servants 
and public employees 
and unpaid leave for 
civil servants for valid 
reasons may be used 
for family/parental 
related reasons.

United 
Kingdom

Time off for unexpected 
emergencies

No cap

No

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Table	6	Availability	of	care	leave	

Country

Purpose(s) of leave

Albania

Care leave

Austria

Care for terminally ill 
relatives

Compensation?

Paid (70 % if less than 
10 years of insurance; 
80 % if more than 10 
years)

Unpaid

Maximum period of 
leave

12 days per year (15 
days if child is younger 
than 3 and ill)

Up to three months 
with an extension 
period of another 
three months

51 months over a 
career

State benefits

Full-time or part-time 
leave.

Three months

Belgium

Care for seriously sick 
children or relatives 
with heightened 
increased care 
requirements, severely 
ill relatives or severely 
ill children

Special schemes in 
the private and public 
sectors related to 
career breaks (public 
sector) or time credits 
(private sector)
 – Care for a child 

younger than 12 
years

 – Care for a disabled 
child younger than 
21 or a seriously 
ill relative or 
a terminally ill 
member of the 
family

Other relevant 
information

Extended period of no 
more than 30 days

Employees need an 
agreement with their 
employer.
They can 
claim a benefit 
(Pflegekarenzgeld) 
if the relative/child 
has the right to 
level 3 Care benefit 
(Pflegegeld	Stufe	3)

The special career 
break/time credits 
scheme aimed at 
caring for a seriously 
ill relative467 include 
several restrictions: 
the employee 
must give seven 
days’ notice, the 
employer may object 
to the leave (in 
small businesses) 
or postpone it on 
organisational grounds 
(in any business), and 
the minimum duration 
of the leave must be 
one month.

In addition to the time 
off for force majeure 
leave and to the 
possibility for unpaid 
leave.

Bulgaria

Care for sick child, 
spouse or relative

Up to 60 days per 
year for a child, 10 for 
an adult

70 % pay by the 
employer for the first 
3 days and 80 % 
after that from social 
insurance for insured 
persons

Croatia

Care for sick family 
member (child or 
spouse)

60 days per illness for 
children up to seven, 
40 days per illness for 
children from seven to 
18, 20 days per illness 
for children over 18 
and spouse 

70 % of salary 
capped, 100 % of 
salary for children 
under 3. All payments 
subject to a ceiling of 
EUR 561 (HRK 4 257) 
per month

467  RD of 10 August 1998 and, in the public sector, various sets of regulations.

121

Country

Purpose(s) of leave

Maximum period of 
leave

Compensation?

Other relevant 
information

Cyprus

Czechia

No care leave beyond 
the leave on grounds 
of force majeure

Care for a sick family 
member or ill child 
younger than 10 years

No limit per year for 
care of ill child younger 
than 10 years468 

Caring benefit (60 % of 
daily salary) paid from 
sickness insurance

Long-term care for 
family member

90 days

Denmark

Care for disabled/
long-term illness/ 
terminally ill relative

Maximum 6 months, 
can be extended 
with an additional 3 
months

Long-term care 
allowance (60 % of 
daily salary)

The level minimum 
salaries for care 
personnel employed 
by the local 
municipality, as set 
out in collective 
agreements for care 
personnel.

Paid at the level of 
minimum wage

The leave can be 
divided into smaller 
parts, and the leave 
can be divided 
between several 
persons who are ‘close 
relatives’

Estonia

Time off to take 
care of sick adult or 
disabled person

Care leave for child 
up to 14 years or a 
disabled child up to 18 
years

5 days per year

10 working days per 
year

Unpaid

Finland

Care for sick relative

Fixed term

Unpaid

Care leave for child, 
partial care leave for 
child

Up until the child is 3 
years old

Flat rate benefit

France

Care for ill child

3 to 5 days per year

Unpaid (but collective 
bargaining agreement 
of company or sector 
can provide pay)

Care for a terminally ill 
child, parent or spouse

6 months

State benefits 
available 

May be taken part-
time

Germany

Part-time or full-time 
home care leave 
to care for a close 
relative under the age 
of 18

Up to six months

End-of-life care for a 
close relative

Up to three months

‘Home care support 
benefit’ as a means of 
earnings replacement 
benefits

‘Home care support 
benefit’ as a means of 
earnings replacement 
benefits

Reduction of working 
time possible but no 
less than 15 hours per 
week, in agreement 
with the employer 
for up to two years 
to care for a close 
relative in need of 
care

468  Provided that the employee provides a medical certificate verifying the illness of the child, there are no maximum limits per year.

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Country

Purpose(s) of leave

Maximum period of 
leave

Compensation?

Other relevant 
information

Greece469

Care for a child in 
hospital due to disease 
or accident, available 
to natural, adoptive or 
foster parent

Care for a child or 
spouse requiring 
transfusions or 
periodic hospitalisation 
or a disabled child

Public sector: 30 days 
per year470

Public sector: fully 
paid leave. 

Public sector: from 22 
days per year.

Public sector: fully 
paid leave 

Care for sick 
dependents

Private sector: 6-10 
days per year.

School visits

Public sector: 4-10 
days per year. 

Private sector: 4 days 
per year

No

Yes

Yes

Public sector: 4-5 days 
per year

Yes

Hungary

Care for a relative

Between 30 days and 
two years

Unpaid leave,
State benefits may  
be available ranging  
EUR 98-177/month
50-60 % of the 
average salary

Sick leave for parents 
to take care of their 
children

Unlimited until child 
is 12 months, then 
number of days 
depends on the age of 
the child

The relevant law is 
silent on whether 
this leave should 
be paid or unpaid, 
but the SCPC (Civil 
Section – Full Court), 
by construing this 
provision under 
Article 21(1) of the 
Greek Constitution 
(protection of the 
family and the 
children), found that 
the time off for school 
visits has to be paid.

Need for care is 
certified by a physician

Need for care is 
certified by a physician

Home care leave 
to care for disabled 
or permanently ill 
children

None available

Care for a person who 
needs full-time care 
and attention. 

Iceland

Ireland

Unlimited (until the 
18th birthday of the 
child)

State benefits 
available  
(EUR 344/month)

Need for care is 
certified by a physician

104 weeks (208 
weeks if an employee 
has to look after more 
than one person) 

State benefits

Subject to one year of 
continuous service

469  After the cut-off date (01.01.2021) the provisions on family-related leaves were amended by Act 4808/2021.
470  These types of leave presuppose the exhaustion of other paid leave including parental leave, except annual leave; 

according to the national expert this condition conflicts with Directive 2010/18/EU.

123

Country

Purpose(s) of leave

Maximum period of 
leave

Compensation?

Other relevant 
information

Italy

Illness of child 
younger than three 

For period of illness

Unpaid

Details of the nature 
of such leave to be 
determined between 
employer and worker

Care for seriously 
disabled relatives who 
is not hospitalised

Three days per month 

Yes (100 %)

Care for seriously 
disabled spouse if not 
hospitalised

Two years in the 
whole career

Yes (capped)

Death or serious 
illness of a close 
relative

Three days per year

Yes

For serious family 
reasons

Two years over a 
career

No

80% of average social 
insurance salary

Latvia

No care leave except 
for:
 – Care leave for a sick 
child up to the age 
of 14;

 – Care leave up to 
the age of 18 in 
case of severe and 
serious illness when 
personal care by the 
parents at home 
or at hospital is 
needed, or for the 
care of child with 
disabilities

Until the age of 14:
 – up to 14 days;
 – in hospital up to 21 

days;

 – in case of broken 
bones up to 30 
days.

Until the age of 18:
 – up to 26 weeks
 – in specific cases 
where personal 
care in hospital 
is required, up to 
3 years within a 
5 year period

Liechtenstein No care leave except 

Lithuania

for force	majeure

Full-time care leave 
for a sick child, 
relative or spouse – up 
to 120 days 

120 days per year for 
a seriously ill child, 7 
for an adult

Luxembourg

Care for family 
reasons if child is sick 

Maximum 12 days 
for child younger than 
4; 18 days for child 
between 5 and 13; 5 
days for child between 
14 and 18

State benefits for 
up to 7 days (at 
once) and up to 120 
days per year for a 
seriously ill child

Yes, 100 %

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Country

Purpose(s) of leave

Maximum period of 
leave

Compensation?

Other relevant 
information

Malta

No carers’ leave in 
national law. 

But in public service: 
responsibility leave 
to take care of 
dependent elderly 
parents, sons and 
daughters, or the 
spouse/partner in a 
civil union

For 12 months, can be 
renewed on a yearly 
basis

Unpaid

Has to be approved. 
Medical certificate is 
required 

Montenegro

Serious illness of a 
close family member 

Determined by 
collective agreement

Death of an immediate 
family member

7 days

Yes

Yes

Netherlands

North 
Macedonia

Norway

Special care for a child 
with special needs

Short-term care 
leave to care for a 
sick relative or family 
member or another 
close contact

Long-term care for 
a close relative or 
dependent with life-
threatening illness or 
serious illness

Care leave for a sick 
child under the age of 
three

Care for close 
relatives and/or other 
close persons during 
terminal stage of life. 

Care for parents, 
spouse, cohabitant or 
registered partner and 
disabled or chronically 
sick child

Until the child turns 3

Yes

Up to 10 days per 
year

Yes, at 70 %

May be taken  
part-time

Up to 6 weeks per 
year

No

May be taken  
part-time

Up to 30 days a year

Paid (100 %)

60 days

10 days per year

Yes, equal to sick 
leave pay (100 % 
salary)

Unpaid leave. salary 
during the leave are 
often agreed upon 
between the parties, 
for example in 
collective agreements

80 %

80 %

Maximum is 60 days 
per year, irrespective 
of the number of 
family members

Poland

Care for a child

Up to 60 days per 
year

Care for family 
member

Up to 14 days per 
year

125

Maximum period of 
leave

15 days per year

30 days per year

Compensation?

Other relevant 
information

No

No

30 days after birth

No

7 working days per 
year

Yes

Until the child turns 5

Yes, compensation of 
earnings

Also for other groups 
(e.g. adoptive parents, 
foster parents) until 
the child turns 3

No

In case of personal 
and full-time nursing, 
a nursing benefit is 
available: 55 % of the 
daily salary is paid 
for a maximum of 10 
days

Country

Purpose(s) of leave

Portugal

Care for a child (under 
or over 12 years)

Care for a disabled 
child or chronically ill 
child

Care for a grandchild 
when the mother is 
under 16 at the time 
of birth

Romania

No care leave

Serbia

Slovakia

Time off (in case of 
serious illness of a 
family member

Special care of a child 
or another person: 
absence from work or 
work half-time 

The employer is 
obliged to accept 
the absence of an 
employee from work 
for periods when they 
are attending to a 
sick family member 
and during periods 
relating to care for a 
child under ten who 
for significant reasons 
cannot be placed in an 
educational centre or 
school that otherwise 
cares for the child; or 
if the person caring for 
the child falls ill or is 
placed in quarantine. 

Slovenia

Care for close 
relatives

80 % salary

Up to 7 days for 
children under 7;  
up to 15 days for 
older disabled 
children, possibility of 
extension to 30 days

Leave on full-time 
basis only; number 
of days depends on 
situation

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Country

Purpose(s) of leave

Maximum period of 
leave

Compensation?

Spain471

Time off in some 
situations (e.g. death 
of a relative) 

2 days. 4 days if the 
worker has to travel to 
another town 

100 % 

Other relevant 
information

Civil servants 3 to 6 
days

Civil servants have a 
right to be paid at a 
reduced rate of up to 
half of their working 
time to take care of 
a first-degree relative 
who is seriously ill for 
up to one month.

Daily reduction of 
working time to take 
care of a person with 
a disability, illness etc.

Care leave taken to 
care of for relatives up 
to the second degree 
who cannot take 
care of themselves 
because of age, 
accident, illness 
or disability, and 
they do not have a 
remunerated activity.

Proportional reduction 
of the salary from a 
minimum of one eighth 
and a maximum of one 
half of their working 
day.472 
Civil servants have the 
same right but without 
minimum or maximum 
limits to the rate of pay.

Up to 2 years 
(workers) or 3 years 
(civil servants)

Unpaid

Sweden

Care for sick child 
under the age of 12

60 days yearly per 
child

80 % salary capped

Care for seriously ill 
relatives

100 days (240 if the 
relative has AIDS)

State benefits

Turkey

United 
Kingdom

For employees and 
civil servants who care 
for a child who is at 
least 70 % disabled or 
a child with a chronic 
illness 

Death of a child/
spouse/parent/sibling 

For civil servants: 
Sickness and patient 
companionship leave

None available

Up to 10 days

Yes

7 days for civil 
servants;  
3 days for employees

3 months

Yes

Yes

No age limit for the 
child, can be used 
wholly or partially 
within 1-year period

Upon medical report, 
may be extended, no 
age limit for child

471  Following the reform introduced by Royal Decree 6/2019 of 1 March 2019. Transition period until 2021.
472  Spain, Article 37.6 of the Workers’ Statute.

127

4.8	 Leave	in	relation	to	surrogacy

In just a few countries parental leave is available in cases of surrogacy. Countries that have provided for 
this right are Greece473 and the United Kingdom. In the public sector of Greece, public servants who are 
the commissioning parents in a surrogacy are entitled to three months fully paid leave after the birth of 
the child in addition to reduced working hours, or alternatively, in addition to the nine months leave granted 
to parents under the public sector parental leave scheme. In Spain, surrogacy is not legal.474 However, in 
2010 the General Directorate of Registries and Notaries issued a resolution that enabled the registration 
in the Spanish Civil Registry of children as a result of this practice in other countries, as long as there was 
a court ruling or resolution proving the affiliation of the minor, as well as the fulfillment of the rights of the 
pregnant woman. The Spanish Supreme Court has focused on the fact that, despite the invalidity of this 
type of contract, the protection of the minor cannot be impaired by this circumstance, and this is how rights 
have been recognised by case-law, among others through benefits or leaves granted to surrogate fathers.

In  Ireland,  there  is  no  legislative  right  to  leave  in  relation  to  surrogacy,  but  a  parent  in  loco  parentis 
might be entitled to parental leave. In Portugal surrogacy has been allowed under very strict conditions 
since 2016. Since 2019, parenthood rights have been recognised for individuals ‘entitled to parenthood 
rights’.  In  the  Netherlands,  intended  parents  will  have  a  right  to  parental  leave  if  they  become  the 
legal parents of the child, e.g. through adoption, or if they take permanent care of the child and live at 
the same address. The surrogate mother might also be entitled to parental leave if she is still the legal 
mother of the child. In North Macedonia, the surrogate mother is entitled to 45 days of birth leave and 
the commissioning mother is entitled to maternity and parental leave. In Iceland, a draft on altruistic 
surrogacy  is  still  pending.475  According  to  the  draft,  the  surrogate  mother,  while  pregnant,  would  have 
all the same rights as any pregnant woman with regard to health services. According to Article 23 of 
the draft law, the surrogate mother and her spouse would be entitled to maternity/paternity leave and 
parental leave. In Croatia, adoption leave would be possible. 

In a few countries, surrogacy is not legally regulated (e.g. Albania, Belgium, Croatia, Hungary, Italy, 
Latvia, Montenegro, Poland, Turkey). Surrogacy is illegal in Austria,476 Bulgaria, Estonia, Finland, 
France, Germany, Liechtenstein, Luxembourg, Norway  and  Slovenia.  In Denmark,  Norway and 
Slovakia any agreement on surrogacy is invalid and surrogacy is not recognised in Sweden. 

In Serbia, surrogacy is still not allowed. However, there is a very restrictive right to surrogate motherhood 
in the draft of the Civil Code.477 In Malta, surrogacy is not legal and there is no surrogacy leave. However, 
leave is granted in cases of treatments or procedures that include the in vitro handling of human oocytes, 
spermatozoa or embryos for establishing a pregnancy. This includes but is not limited to, intra-uterine 
insemination, in vitro fertilisation, intracytoplasmic sperm injection, embryo transfer, gamete, germinal 
tissue and embryo cryo-preservation and oocyte and embryo donation. A single prospective parent shall 
be entitled to 60 hours of leave with full pay. In the case of two prospective parents where one is a human 
oocyte donor and the other the receiving person, both prospective parents shall be entitled to 60 hours of 

473 

In the private sector, the commissioning parents are assimilated with natural parents concerning all forms of leave for the 
care and raising of the child. Both the commissioning and the surrogate mother are entitled to reduced working days. In 
the public sector, public servants who are the commiwssioning parents in a surrogacy are entitled to three-months fully 
paid leave after the birth of the child in addition to the reduced working hours or alternatively to the nine-months leave (to 
be taken instead of the reduced working hours).

474  Article 10 of Law 14/2006, of May 26, on Assisted Human Reproduction Techniques, establishes that all contracts for which 
pregnancy is agreed – with or without a price – by a woman who waives her maternal affiliation in favour of the contractor 
are invalid.

475  First proposed in 2015 by the Minister of Health the draft went through one discussion in the Althing (Parliament) and the 

procedure then stopped before going to a parliamentary committee.

476  Parents may, however, enter into a surrogacy contract in a country where this is legal. If the biological parents are Austrian 
citizens, the children must be recognised legally as citizens, granted residency rights on entering the country, and included 
in all provisions of Austrian law, such as social security participation, as legal offspring of the surrogate parents. This would 
also have to be extended to the right to parental leave and parental part-time arrangements for the parents.

477  Text available in Serbian at http://www.mpravde.gov.rs/files/NACRT.pdf.

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leave with full pay provided that 120 hours of leave for medically assisted procreation with full pay shall 
be granted one time for the human oocyte process.478

4.9	 Flexible	working-time	arrangements

According to Clause 6(1) of the Parental Leave Directive 2010/18/EU, parents returning from parental 
leave  may  request  changes  to  their  working  hours  and/or  working  patterns  for  a  set  period  of  time. 
The  employer  has  to  consider  and  respond  to  such  requests,  taking  into  account  both  the  employer’s 
and the worker’s needs. Even if this is a rather weak provision, it might offer possibilities in practice to 
adjust working time and working hours while remaining employed (see also Article 21(2) of the Recast 
Directive 2006/54/EC). In should be noted that EU law does not guarantee a right to part-time work.479

The Work-life Balance Directive 2019/1158 introduces more rights to request flexible working arrangements 
for workers with children up to a specified age (at least eight years) and carers (Article 9). These arrangements 
include the right to request adjustment of working patterns, including through the use of remote working 
arrangements, flexible working schedules or reduced working hours (Article 3(1)(f)).

The reform introduced by Royal Decree 6/2019 of 1 March 2019 in Spain has resolved a key aspect of 
compliance with Directive 2010/18/EU. Under the current regulation, employers must now consider and 
respond to requests from workers to have their working day adapted to their needs, and not only when 
they come back to work after parental leave, but more widely. This right is also guaranteed by giving 
access to an urgent and priority procedure before the Labour Courts. The right to have their working day 
adapted to their needs is recognised for workers, but not for civil servants.480

The three tables below offer an overview of the possibilities for workers to access reduced – hours (for 
example from full-time to part-time work) or extend working time (Table 7), have an individual right to 
adjust weekly working time patterns (Table 8) and the possibility to work from home or remotely (Table 9).

Table	7	Right	to	reduce	or	extend	working	time481

Country

Access to adjustment of working time

Albania

Austria

If	so,	tied	to	care	purposes?

Right or right to request?

Compensation?

For breastfeeding women 
to breastfeed the child. Two 
hours.

Right for the period of 63rd 
day following childbirth until 
the child is one year old

Yes, salary is paid

Yes (parents of children up to 
the age of 7 (or upon entering 
school).482

Right to reduce working time

No

478  Laws of Malta, Chapter 452, Employment and Industrial Relations Act, Leave for Medically Assisted Procreation National 

Standard (Amendment) Order, 2020, LN 263 of 2020: https://legislation.mt/eli/ln/2020/263/eng.

479  See CJEU Judgment of 15 October 2014, Teresa Mascellani v Ministero della Giustizia, C-221/13, ECLI:EU:C:2014:2286. The 
case concerned a female worker whose employer ordered the conversion of a part-time employment relationship into 
full-time employment without the consent of the employee concerned. The national provision was not contrary to the 
Part-time Work Directive 97/81/EC. 

480  The Royal Decree 6/2019 modified the Worker’s Statute on this point, but not the Public Servants’ Statute. There is some 
controversy (and a few judgements still by lower courts) on this point, because since there is no specific regulation 
for civil servants, the Worker Statute could be used as subsidiary norm, particularly for contract workers in the Public 
Administration. Article 8.4 of the Resolution of 28 February 2019 of the State Secretary for Public Function has established 
that ‘exceptionally, adaptations of the working day could be authorised with personal and temporal character, with a 
maximum of two hours, for motives directly linked to conciliation of family life and in cases of single-parent families’.

481  The table has been adapted from: McColgan, A. (2015), Measures to address the challenges of work-life balance in the EU 
Member States, Iceland, Liechtenstein and Norway, European Commission, p. 36, available at: http://www.equalitylaw.eu/
downloads/3631-reconciliation.

482  When caring for dying relatives or severely ill children, workers can apply for a temporary reduction in working hours. 

Similarly, workers can reduce working hours for a period of three months in cases where a severely sick or disabled relative 
needs help with their care.

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Country

Access to adjustment of working time

If	so,	tied	to	care	purposes?

Right or right to request?

Compensation?

Yes. Not tied to care purposes. 
In the private sector mostly 
‘time credits’
In the public sector, staff 
regulations with possibility of 
career-breaks.

No right483

Yes, but only reduction of 
working time as part of 
arrangements for maternity 
and parental rights and 
benefits.

Right

Yes (statutory social benefit)

Yes, in relation to maternity 
and parental leave 

Yes

Belgium

Bulgaria

Croatia

Cyprus

Czechia

No

No

No

No

Nursing breaks are paid, 
included into working time

Wage-related, flat rate or no 
benefit depending on type of 
leave484 

No

No486

 Yes

Yes, not tied to care purposes. 

Right to request

Yes. Part-time work under 
some conditions for some 
groups

Right, with exceptions

Denmark

Estonia

Yes, not tied to care purposes.

Right to request

Yes, not tied to care purposes

Right to request

Right for breastfeeding breaks 
until child is 1,5 years old

Right

Finland

Yes

Right, with exceptions

France

Germany

Greece487

Right to work part-time, not 
tied to care purposes

Right to request

Right, with exceptions. Now 
also a bridge part-time work, 
thus temporary reduction of 
working time485

Right 

Yes, not linked to care 
purposes 

Private sector: reduced paid 
daily hours for breastfeeding 
and childcare or alternative, 
corresponding length as a 
childcare leave, in the latter 
case upon agreement with the 
employer
Public sector: reduced paid 
hours provided by law or in 
alternative the 9 months 
parental leave

483  Only the employer has the initiative to reduce or extend working time.
484  These arrangements are usually seen in the context of flexible working time, but the provisions are under the Employment 
Contracts Act Chapter on family leaves, like all absence from work for family reasons. The benefit is defined by the Sickness 
Insurance Act. The partial benefit may be flexible (during care leave, when the child is cared at home), or as partial (when 
the child is in the 1st or 2nd form at school). 

485  Section 9a of the amended Part-Time and Fixed-Term Employment Act entered into force on 1 January 2019. There is still 

no right to extend working time on request.

486  Except where the part-time working arrangement carries entitlement to Home Care Support Benefit.
487  After the cut-off date (01.01.2021), flexible working arrangements (FWA) for care reasons, in particular, in the form 
of telework, flexible hours or part time work, were provided by Article 31 Act 4808/2021, implementing Article 9 of 
Directive 2019/1158. See EELN flash report of 09.07.2021, https://www.equalitylaw.eu/downloads/5444-greece-greece-
transposes-directive-2019-1158-on-work-life-balance-141-kb.

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Country

Access to adjustment of working time

If	so,	tied	to	care	purposes?

Right or right to request?

Compensation?

Hungary

Iceland

Ireland

Italy

Yes, tied to care purposes. 
A specific right for working 
time reduction is available for 
breastfeeding mothers.

Right

Social security benefits 
(childcare allowance)

Yes, tied to care purposes

Right, with exceptions

Yes, not tied to care purposes

Right to request

No, except right to part-time 
work in some situations

Right to request 

No

No

No

Latvia

Yes, tied to care purposes

Right for some specific groups

Possibly (unclear as yet)

Liechtenstein No legal right

Lithuania

Yes, tied to care purposes

Luxembourg

No right 

Employer has to consider a 
request to shift from full-time 
to part-time work

No

Right for certain groups. Right 
to request part-time 

No488

Malta

Montenegro

No right, unless provided by 
collective agreement 

Right to request if working in 
the public sector

Yes. Right to work part-time 
until the child is 3 or when 
care for a child with disabilities 
is needed 

Right

Netherlands

Yes, but not tied to care 
purposes

North 
Macedonia

Norway

Yes, for care of children with 
disabilities

Yes, not only tied to care 
purposes489

Poland

Yes, for persons entitled to 
parental and childcare leave 

Right, unless compelling 
business or organisational 
reasons justify a refusal.

Right to request

Right, if no major 
inconvenience for the 
employer

Right to reduce working time 
(half-time during these types 
of leave).

Yes, tied to care purposes

Right, with exceptions

A few collective agreements 
provide for this right

Portugal

Romania

Serbia

Slovakia

Yes, only for women 
employees who are 
breastfeeding children under 
one year old.

No right

Yes, only certain groups or 
with consent of the employer

Right, with exceptions

No

Yes. Working hours to be 
considered as full-time 
working hours for the 
purpose of exercising rights 
arising from and based on 
employment. 

No

No

No

No

No

Yes

Slovenia

Yes, tied to care purposes

Right

Social security contributions 
paid for some parents490
Right to return after a period

488  Where the reduced hours arrangement is for parents of children under 12 (or a disabled child under 18), who are entitled to 

have their weekly hours reduced by two hours (four hours for parents of three or more children under 12).

489  For example, also specific right for employees who have reached the age of 62, or for health, social or other welfare reasons. 
490  Those with a child under three or a disabled child under 18, or two children, one of whom has not completed the first year 

of primary schooling. Additional rights for other persons caring for or nursing a child (e.g. guardians).

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Country

Access to adjustment of working time

Spain491

Sweden

Turkey

United 
Kingdom

If	so,	tied	to	care	purposes?

Right or right to request?

Compensation?

Yes. Right of workers who care 
for children under 12, to have a 
reduction of their working day.

Right, sometimes criteria in 
collective agreements (for 
example the period of notice)

No, proportional reduction of 
salary

Yes (parents of a child up to 8 
years old)

Yes (for pregnant workers, 
workers having recently given 
birth/ breastfeeding workers 
and for biological and adoptive 
parents who are employees or 
civil servants). Approval of the 
employer required for some 
groups of employees.

Yes, not tied to care purpose

Right

Right 

Sometimes492

No

Right to request a change to 
the hours they are required to 
work for all employees

No

Table 8 Individual right to adjust working time patterns

Country

Albania

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czechia

Denmark

Estonia

Finland

France

Possibility to adjust working patterns?

Right or right to request?

No

Yes

Yes

Right

Right to request

No, only on initiative of the employer

Right to request for certain groups 

No, only for certain categories of workers 
(if the nature of the work so requires) on 
employer’s initiative.

No right, only employer’s initiative. Employee’s 
consent required in certain cases (Article 67(4) 
and (5) Labour Act)

Right, with exceptions

No493

Yes

No. Collective agreements or individual shop 
level regulation or individual agreement may 
provide a framework for daily ‘flexi-time’494 

No

No, except in collective agreements or 
agreement between employer and employee 
(also ‘working time bank’).495

No, but collective agreements could provide 
some specific rights and possibility to bank 
hours

491  Following the reform introduced by Royal Decree 6/2019 of 1 March 2019. Transition period until 2021.
492 
493  National legislation does not provide for a legal right to adjust working time patterns beyond the right to reduce or extend 

If parents have not yet exhausted their right to parental benefit.

working time. The right to adjust working time patterns might be stipulated in collective agreements in certain sectors or 
agreed in individual contracts or though practice/custom.

494  This could be in a manner, where employees are entitled to organise their working time as flexi-time up to two hours either 

side of core working time. Core working time is the period of the day when the individual employee/all employees have 
to be present, and flexi-time would be hours around the core time, where the individual employee may organise his or her 
own working time. Core time could be 10.00 to 13.00, and flexi-time could be 6.00 to 19.00. Of course, this arrangement 
works only for the type of work that allows for flexibility. 

495  Working Hours Act. Section 15 of the Working Hours Act contains in addition a provision for shorter working hours for 

social and health reasons other than those connected to family that may be agreed upon by request of the employee and 
the employer must try to arrange work so that the employee may work part time. An agreement for such shorter hours 
may cover a maximum of 26 weeks at a time. A denial of an employee’s request for part-time work by the employer must 
be justified.

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Country

Germany

Greece497

Hungary

Iceland

Ireland

Italy

Latvia

Possibility to adjust working patterns?

Right or right to request?

No,496 but collective and works agreements 
could provide specific rights 

No498

No

Yes

Yes

Yes, in limited situations

No

Right

Right to request

Liechtenstein No

Lithuania

Luxembourg

Malta

Montenegro

Netherlands

North 
Macedonia

No

Yes

No

Yes

Yes

Yes, for workers returning from parental leave

Norway

Yes

Limited under some conditions

Right to request if working in the public sector

Right to request

Right to request

Right to request for medical reasons, until the 
child is three years old

Right, unless major disadvantages for the 
employer

In the public sector: collective agreement on 
‘flexi-time’

Poland

Yes, for specific groups

Right

Portugal499

Romania

Serbia

Slovakia

Slovenia

Spain500

Sweden

Turkey

United 
Kingdom

Yes

No

Right, employer can justify a refusal

No

No right to adjust working time patterns, except 
for specific groups

Right to request

Yes, for specific groups on employers’ initiative 
and agreement with the employee

No

Yes. Right of workers who care for children 
under 12 to have their working day adapted to 
their needs. 

Yes. For parents of a child up to 8 years old 
and in relation to leave to take care of sick 
relatives.

Right

Right

No

Yes, right to request a change to the hours they 
are required to work for all employees.

Right to request

496  Under Section 7(2) of the amended Part-Time and Fixed-Term Employment Act, the employer is obliged to discuss an 

employee’s wish to change the duration and/or situation of the existing contractual working time.

497  After the cut-off date (01.01.2021), flexible working arrangements (FWA) for care reasons, in particular, in the form 
of telework, flexible hours or part time work, were provided by Article 31 Act 4808/2021, implementing Article 9 of 
Directive 2019/1158. See EELN flash report of 09.07.2021, https://www.equalitylaw.eu/downloads/5444-greece-greece-
transposes-directive-2019-1158-on-work-life-balance-141-kb.

498  Except in the maritime sector: upon return from parental leave, a seafarer can request changes to their working time for 

a maximum of seven days, if the operational needs of the ship allow for this in the captain’s judgment. Also, in order to 
facilitate a return to work, the seafarer and their employer can agree on suitable measures for returning to the workplace 
(Article 5(5) and (6) of Decree 80/2012).

499  No possibility for the employer to impose flexible working time arrangement on workers with children under three without 

specific and written consent of the working parent (Articles 206 No. 4(b) and 208-B No. 3(b) of the Labour Code).

500  Following the reform introduced by Royal Decree 6/2019 of 1 March 2019. Transition period until 2021.

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Table	9	Access	to	remote	working/homeworking501

Country

Albania

Austria

Belgium

Bulgaria

Croatia

Cyprus

Czechia

Denmark

Estonia

Finland

France

Germany

Greece504

Hungary

Iceland

Ireland

Italy

Latvia

Liechtenstein

Lithuania

Right	to	remote	working/homeworking

No. It may be possible upon agreement by contract with the employer

No. Access may be possible by agreement with employer or in case of a works council 
agreement.

No

No. It may be possible based on an arrangement with the employer.

No

No, although some collective agreements might provide for it

No

No, unless agreed with employer or in collective agreement

No, unless agreed with employer

No, unless included in collective agreement or agreed with the employer502

No. But an employer has to justify a denial of a request from a worker with disabilities. 

No, although many collective agreements provide for it503

No, unless agreed with employer

No, unless agreed with employer. Specific right for some part-time workers

No, although some collective agreements provide for it

No, although some collective agreements provide for a right/right to request

No. Only right to teleworking in some situations.

No

No

Yes, up to 1/5th of the time for pregnant employees, employees who have given birth or are 
breastfeeding and employees raising a child under 3, or raising child under 14 years of age 
alone or a disabled child under 18. An employer who proves that it would cause excessive 
costs can refuse the request.

Luxembourg

No. Telework regulated in some collective agreements.

Malta

Montenegro

Netherlands

No but available in the public sector

No, depending on agreement with employer

Yes, right to request

North Macedonia

Yes, right to request

Norway

Poland

Portugal

Romania

Serbia

Slovakia

Slovenia

No, although many collective agreements provide for it

Yes, for workers with a disabled child

Yes, a worker with a child under three has a right to telework 

No

No

No

Yes, right to request. Right to return to previous working arrangements

501  This table shows the situation in 2020 before specific measure on remote working/homeworking were taken due to the 

COVID-19 pandemic which are described below.

502  Finland, Section 13 of the Working Hours Act.
503  Germany, under Section 12 of the Federal Equality Act, public employers are obliged to offer family-friendly working hours 

and general conditions.

504  After the cut-off date (01.01.2021), flexible working arrangements (FWA) for care reasons, in particular, in the form 
of telework, flexible hours or part time work, were provided by Article 31 Act 4808/2021, implementing Article 9 of 
Directive 2019/1158. See EELN flash report of 09.07.2021, https://www.equalitylaw.eu/downloads/5444-greece-greece-
transposes-directive-2019-1158-on-work-life-balance-141-kb.

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Country

Spain505

Sweden

Turkey

Right	to	remote	working/homeworking

Yes, right to propose. The rejection must be motivated and in writing, the final decisions is 
taken by urgent proceedings by the Labour court.

No 

Yes, if there is mutual consent (Article 14 EA)

United Kingdom

Yes, right to request a change to ‘where, as between his home and a place of business of 
his employer, he is required to work’

In  some  countries  there  is  a  possibility  of  ‘banking’  working  hours,  up  to  certain  limits  (e.g.  Belgium, 
Croatia).

Teleworking	and	flexible	working	during	the	COVID-19	pandemic

During the COVID-19 pandemic, teleworking became widespread in many countries (e.g. Albania, Austria, 
Belgium, Bulgaria, Croatia, Czechia, Estonia, Finland, Greece,506 Hungary, Ireland, Iceland, Latvia, 
Norway,  Portugal,  Serbia,  Slovakia,  Spain,  Sweden  and  Turkey).  This  does  not  mean  that  legal 
entitlements exist for workers in all these countries to request remote working/homeworking or specific 
rights concerning homeworking. In addition, various surveys show that workers – women in particular – 
face difficulties, for example regarding working time and issues of reconciling work and family life, when 
homeworking (e.g. Croatia and Spain).

Due to the COVID-19 pandemic, legislators have adopted a number of rules on working from home (home 
office) in Austria.507 Neither employees nor employers can unilaterally demand home working; rather, 
an individual agreement is necessary. The framework for home working can be arranged by individual 
contract or works agreement. Special rules on work accidents, liability and data protection apply, as well 
as worker protection rules. The employer is obliged to provide work equipment, or to compensate the 
employee for the costs incurred by working at home using their own digital equipment.508 

In Czechia, general government measures required employers to allow their employees work remotely as 
much as possible. People started to use this way of working often and in many cases they got used to it: 
2 % of women in comparison with 26 % of men are able to execute their work tasks while using a home 
office set-up.509 However, there is still no legal entitlement to request home office arrangements. Similarly, 
working from home is not regulated, for example, in Croatia, Iceland and Hungary). 

In  Croatia,  workers  are  not  entitled  to  decide  independently  on  working  time  arrangements  when 
working  from  home.  All  standard  rules  concerning  working  time,  overtime,  adjustment  of  the  working 
time patterns, night work, and daily, weekly and monthly breaks and vacations apply to work performed 
remotely (i.e. from home), unless otherwise prescribed by law, collective agreement, agreement between 
the works council and employer, or employment contract.510 In practice, however, the boundary between 
working  time  and  free  time  has  been  blurred  or  completely  erased,  especially  for  workers  who  are 
parents  of  school-age  children.  One  study  shows  that  employers  report  that  workers  are  overloaded 
by  the  combination  of  homeworking  and  supervising  their  children’s  online  schooling.511  Workers  have 

505  Following the reform introduced by Royal Decree 6/2019 of 1 March 2019. Transition period until 2021.
506  After the cut-off date (01.01.2021), telework was instituted for the first time in the public sector (Act 4807/2021) and  

re-regulated in the private sector (Article 37 Act 4808/2021); in both sectors the right to disconnect was recognised for the 
first time.

507  BGBl. I Nr. 2021/61.
508  Zischka, S. (2021) Home-Office. Arbeitsrechtliche Neuerungen, die Personalisten kennen sollten. PVP 2021/233.
509 

Idea (2020), ‘Rozdílné ekonomické dopady krize covid-19 na muže a ženy v Česku’ (Different economic consequences 
of covid-19 on women and men) – research paper, available at: https://idea.cerge-ei.cz/images/COVID/IDEA_Gender_
dopady_covid-19_cerven_21.pdf.
510  Croatia, Labour Act, Article 17(6).
511  Kučer, L., Tkalčec, A. (2020) Stavovi poslodavaca o zaposlenim roditeljima (Employers’ views on employed parents), Zagreb, 
p. 16, available at https://parentsatwork.eu/wp-content/uploads/2020/11/Izvještaj-stavovi-poslodavaca-studeni-2020.pdf.

135

problems with time management, stress and inadequate technical equipment for working from home,512 
as well as insufficiently clear instructions from their superiors. As far as flexible working arrangements 
are concerned, almost all employers (97.1 %) who participated in the survey stated that they offered their 
workers the option to work from home during the pandemic (and over 50 % of them think that they would 
use this option even after the pandemic is over), two thirds (66.7 %) have introduced flexible working time, 
and one third of employers have allowed their employees to take leave to look after their children during 
times when schools and kindergartens were closed.513

The Swedish trade union federation for white-collar workers in the private sector, TCO, reported that, 
among its members, the majority of women who worked from home experienced less stress, felt less 
disrupted, and said that they were getting more done and became more efficient than women who worked 
in  a  workplace  outside  the  home.  On  the  other  hand,  men  who  worked  from  home  experienced  more 
stress than men who continued to work in the workplace. The TCO states that reduced stress can lead 
to less sick leave and greater job satisfaction, and that working from home thus improves working life 
for women in these respects. However, from a gender equality point of view, a development where men 
choose to work in the workplace while women prefer to work from home is not optimal. There is a risk that 
women will have greater responsibility for the family because they are at home, and that men will have 
better opportunities for career and salary development because they are physically present at work.514 

In some countries, specific measures were taken on homeworking during the COVID-19 crisis. In Ireland, 
a code of practice has been adopted by the Workplace Relations Commission on the right to disconnect. 
The  key  issue  is  to  provide  assurances  to  employees  who  feel  obliged  to  routinely  work  longer  hours 
than  those  agreed  in  their  terms  and  conditions  of  employment.  Employees  essentially  should  work 
their normal working hours and not be expected to be on duty responding to emails, etc. at any hour. An 
employee asserting their right to disconnect should not be penalised.515 

In Malta, the Head of the Civil Service issued a directive stipulating that teleworking requests by public 
sector employees had to be accepted in their entirety, whilst allowing for everything possible to be done 
so that other requests are also accepted, as long as the work carried out and service to clients remains 
consistent.516 

In Norway, the set working time for Government employees was suspended for a period due to COVID-19.

In Poland, legislation aimed at combating the COVID-19 crisis allowed employers to order employees 
to work remotely for a specified period of time. The condition is that the employee has the skills and the 
technical and local capabilities to perform such work and that the type of work permits it. The tools and 
materials needed to carry out the remote work and the logistical support for the remote work have to 
be provided by the employer. At the direction of the employer, an employee performing remote work is 
obliged to keep records of the work performed, including, in particular, a description of the work, as well as 
the date and time of its performance. The employer may at any time revoke an order to work remotely.517 
There is no symmetrical entitlement for employees to request remote working. 

512  Even though it is the employer’s duty to ensure that workers have the necessary means to perform work tasks remotely, as 

well as to ensure safety at work even in the circumstances of teleworking.

513  Kučer, L., Tkalčec, A. (2020) Stavovi poslodavaca o zaposlenim roditeljima (Employers’ views on employed parents), Zagreb, 
p. 16, available at https://parentsatwork.eu/wp-content/uploads/2020/11/Izvještaj-stavovi-poslodavaca-studeni-2020.pdf.

514  TCO (2021) Livspusslet under Coronapandemin, available (in Swedish) at: https://www.tco.se/rapporter-och-remissvar/

rapporter/2021/livspusslet-under-coronapandemin/.

515  https://www.workplacerelations.ie/en/what_you_should_know/codes_practice/code-of-practice-for-employers-and-

employees-on-the-right-to-disconnect.pdf. 

516  COVID-19 Info Page, ‘Aid Measures’: https://www.gov.mt/en/Government/DOI/Press%20Releases/Documents/ISSUE03_

ENG_14032020.pdf.

517  JoL of 2020, item 1842, as amended (so-called Anti-Crisis Shield).

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Special legislation was approved in Portugal allowing for a general right to work remotely from home 
in all situations where work from home was possible.518 This right is granted both to the employer and 
to the employee, provided the technical conditions for remote working are met, so the agreement of the 
parties is no longer needed. Despite the general and provisional nature of this measure (in the sense that 
it is intended to last only during the pandemic and it is justified for public health reasons and not linked 
to the right to teleworking for purposes of reconciling work and home life),519 the practical result of this 
legislation is that working from home or remotely has become very common and widely accepted, unlike 
before. So, this development may contribute to this kind of work becoming more widespread, including for 
purposes of reconciling work and family life, after the end of the pandemic crisis.

In Slovakia, the Labour Code was amended. Before the amendment, the right to teleworking was based 
exclusively on a mutual agreement between the employee and the employer. Since April 2020, during 
an  emergency  period,  teleworking  has  been  granted  upon  the  request  of  the  employee,  unless  there 
are  other  operational  restrictions,  while  employers  may  temporarily  order  teleworking  without  their 
employees’ consent subject to two conditions: the employee can perform their work tasks from home 
and work tasks do not have to be carried out at the official workplace; or carrying out work tasks at the 
official workplace is risky.520

In  Spain,  domestic  care  tasks,  70  %  of  which  are  carried  out  by  women,  multiplied  with  the  closure 
of  schools  and  day  centres  for  the  elderly  and  people  with  disabilities.  In  order  to  avoid  lay-offs,  the 
government determined that teleworking was the preferred approach, over temporary cessation or the 
reduction of activity.521 Despite the possibility of adapting the schedule and reducing the working day to 
favour the reconciliation of work and home life, teleworking proved to be a very limited reconciliation 
mechanism  under  these  circumstances  and  a  study  by  the  University  of  Valencia  revealed  the  higher 
levels  of  stress  and  anxiety  among  women  who  worked  from  home  with  dependent  children  during 
lockdown.522 

In September 2020, the Government adopted Royal Decree 28/2020 on remote working,523 which modifies 
Article 13 of the Workers’ Statute and establishes new conditions and guarantees for remote working 
and teleworking, especially the right to have flexible working hours, the obligation to register the working 
time adequately and the right to digital disconnection. However, reconciliation measures requested by the 
trade unions, such as special care leave when children have to isolate at home because of being in close 
contact with someone who tests positive for COVID-19 but without being positive themselves, were not 
agreed upon.

4.10	 Evaluation	and	implementation

The previous sections of this chapter show that in general the implementation of the EU directives in the 
EU Member States is satisfactory. In many countries, workers are entitled to more leave rights than the 
minimum required under EU law. However, there are still some problematic issues in the legislation of 
some countries which have been highlighted by the national experts of the network and which should 
be remedied. For example, in Albania, part-time workers, fixed-term contract workers or people with a 

518  Decree-Law No. 10-A/2020, of 13 March 2020, Article 29.
519  A legal right to telework for purposes of reconciling work and home life was introduced by Law No. 120/2015, of 

1 September 2015.

520  Slovakia, Act No. 66/2020 Coll amending Act No. 311/2001 Coll. Labour Code (Zákon č. 66/2020 Z.z. ktorým sa dopĺňa zákon 
č. 311/2001 Z. z. Zákonník práce v znení neskorších predpisov a ktorým sa dopĺňajú niektoré zákony), Article 250b, 2 April 
2020, effective from 4 April 2020.

521  Spain, Royal Decree 8/2020, of 17 March 2020, on extraordinary urgent measures to face the social and economic impact 
of COVID-19 (Real Decreto-ley 8/2020, de 17 de marzo, de medidas urgentes extraordinarias para hacer frente al impacto 
económico y social del COVID-19), https://www.boe.es/buscar/act.php?id=BOE-A-2020-3824.

522  https://www.womennow.es/es/noticia/estudio-conciliacion-teletrabajo-mujeres-durante-el-confinamiento/.
523  Spain, Royal Decree 28/2020, of 22 September 2020, on remote working (Real Decreto-ley 28/2020, de trabajo a distancia), 

https://www.boe.es/buscar/act.php?id=BOE-A-2020-11043.

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contract of employment or employment relationship with a temporary employment agency are excluded 
from the right to parental leave. In Ireland, politicians are not entitled to maternity leave and legislation 
on paternity leave, adoption leave and parental leave does not yet apply to politicians.

In addition, many surveys reveal the gender imbalance of work and care. This has a negative impact – due 
for example to the taking up of long unpaid leave – , mainly on women, as regards career possibilities and 
related income, pensions etc. For example, the fact that in Austria childcare benefits can be received for 
longer (851 days) than the maximum period of legal parental leave (up to the child’s second birthday) 
can be an incentive especially for low-earning women to stay at home for longer than the protections tied 
to parental leave last. 

Another problematic aspect is that enforcement in practice is often lacking. There is not much case law 
on work-life balance issues (see also Sections 2.2 on direct sex discrimination and 2.3 on indirect sex 
discrimination).  Most  cases  described  in  the  country  reports  concern  discrimination  and  dismissals  in 
relation  to  pregnancy  and/or  maternity  (e.g.  Albania,  Denmark,  Estonia,  France,  Greece,  Hungary, 
Ireland, Lithuania524 and Norway) and unfavourable treatment upon returning from maternity leave 
(e.g.  France,  Greece,  Hungary,  Ireland  and  Norway).  However,  claimants  in  Albania,  for  example, 
are seldom successful in proving pregnancy or maternity discrimination, while pregnancy and maternity 
discrimination as well as unfavourable treatment due to the taking up of leave seem to be widespread. 
This is also the case according to various surveys in Belgium.

As for the general trends in the field of work-life balance in Hungary, a study from 2018, commissioned 
by  the  European  Parliament’s  Policy  Department  for  Citizens’  Rights  and  Constitutional  Affairs  at  the 
request of the FEMM Committee, highlighted that, since 2011, the Government has committed itself to 
promoting family mainstreaming instead of gender mainstreaming.525 An Amnesty International study 
on gender-based discrimination in Hungarian workplaces (from 2020) concludes that the state ‘urgently 
needs to take steps to change the widespread negative perception concerning pregnant employees and 
employees with young children among employers and the wider society, as well as the need for men to 
play a more significant role in family life’.526 

In some countries, protection against discrimination in relation to parenting and family responsibilities 
is limited (for example in Albania). This is worrying, as the gap between law on the statute books and 
law in action does not seem to be becoming narrower. However, the expert for Denmark reports some 
successful cases for claimants in relation to parental, paternity and care leave as well as time off for 
force	majeure, addressing not only dismissal, but also unfavourable treatment in relation to such leave. 
In France, the Court of Cassation decided a few cases on indirect discrimination in relation to parental 
leave, applying CJEU case law to these national cases.527

The country reports show the huge diversity of measures at national level aimed at the reconciliation 
of work, private and family life. In some countries, the complexity of the national legislation has been 
criticised (for example, in Germany). Different forms of leave for different reasons are available to specific 
groups under specific conditions with different allowances, for example in Greece and in Hungary. 

The  EU  directives  and  provisions  reflect  a  slow,  step-by-step  process  towards  more  specific  rights,  in 
particular with the recently adopted Work-life Balance Directive 2019/1158 which is the first piece of 
legislation in the area of gender equality law in a decade. In some countries, new leave and/or rights 

524  However, there have only been a few cases.
525  Hungler, S., Kende, Á. (2019) ‘Nők a család- és foglalkoztatáspolitika keresztútján’ (‘Women at the crossroads of family 

policies and employment policies’), Pro Futuro, vol. 9, no. 2., available at: https://doi.org/10.26521/Profuturo/1/2019/3881.

526  Amnesty International (2020): No Working Around It: Gender-based Discrimination in Hungarian Workplaces, p. 51, https://

www.amnesty.org/download/Documents/EUR2723782020ENGLISH.PDF.

527  See Court of Cassation, Social chamber 14 November 2019 No. 18-15682, https://www.courdecassation.fr/jurisprudence_2/

arrets_publies_2986/chambre_sociale_3168/2019_9139/novembre_9548/1567_14_43913.html and Court of Cassation, 
No. 16-27825, 18 March 2020 (applying the CJEU, judgment of 8 May 2019, Praxair, C-486/18, ECLI:EU:C:2019:379).

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Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

as well as payment will have to be introduced (paternity leave, parental leave, carers’ leave and flexible 
working time arrangements). The required changes will range between quite significant and minor and 
their effects in practice will have to be awaited. However, with the adoption of the Work-Life Balance 
Directive and the accompanying communication on Work-Life Balance, it is clear that work-life balance 
issues  are  firmly  on  the  EU  agenda,  providing  an  impetus  for  further  developments  at  national  level. 
However, in terms of work-life balance issues, the gender effects of the COVID-19 pandemic since 2020 
are worrying.

4.11	 Remaining	issues

4.11.1	 COVID-19	and	work-life	balance	issues

The COVID-19 pandemic has consequences for gender (in)equality as many surveys and data show. For 
example, the European Institute for Gender Equality (EIGE) published recent findings on unpaid care and 
housework.528 EIGE reports that the lockdowns leading to the closing of schools and some workplaces 
increased women’s share of unpaid work despite men sharing the workload more than before. During 
lockdowns, European women spent 18.4 hours per week on cooking and housework, compared to 12.1 
hours for men. Before the pandemic, women spent 15.8 hours and men 6.8 hours on these tasks. The 
situation is particularly difficult for parents who had to help their children during online schooling and for 
single parents, most of whom are women. Mothers working from home had to deal with interruptions 
by  children  more  often  than  fathers.  Many  national  experts  describe  similar  problems.  In  addition,  in 
Albania, for example, a considerable proportion of women faced psychological and mental health issues 
as a result of the uncertainty created by the pandemic.

The double load of providing for children while working (often from home) has hit women especially hard, 
as a recent Austrian research project found.529 The Austrian Chamber of Labour commissioned a study 
on the compatibility of family and career during the COVID-19 pandemic, finding that parents experienced 
high amounts of pressure in their jobs and private lives, due to demands by their employers, the absence 
of child-care and schooling options and political developments. Women were hit especially hard in this 
regard.530

In  Bulgaria,  measures  undertaken  by  the  Government,  including  restrictions  on  attending  school  also 
for younger students and quarantine periods in cases of COVID-19 being identified in schools, compelled 
parents  of  younger  children  (minors  up  to  14  years  old),  to  stay  at  home  and  take  care  of  them,  in 
addition to organising online home-schooling for them. Very often these responsibilities came in addition 
to remote working for the parents concerned. In many cases it was the mother who had to perform these 
functions, but it was observed that the pandemic created opportunities for more equal participation by 
both parents, for contributions to a better work-life balance and for gender equality. 

Similarly, UN Women’s rapid-assessment survey on the situation in North Macedonia showed that both 
women and men spent more time on household tasks (such as cleaning and grocery shopping). It also 

528  See Unpaid care and housework: https://eige.europa.eu/covid-19-and-gender-equality/unpaid-care-and-housework.
529  Mader, K., Derndorfer, J., Disslbacher, F., Lechinger, V. and Six, E. (2020) ‘Genderspezifische Effekte von COVID-19’ (Gender-

specific effects of COVID-19), research project; summary available at: https://www.wu.ac.at/vw3/forschung/laufende-
projekte/genderspezifscheeffektevoncovid-19.

530  Froissner, F., Glassner, V. and Theurl, S. (2021) ‘Krisengewinner Patriarchat? Wie die COVID-Arbeitsmarktkrise Frauen trifft’ 
(Is patriarchy the winner in this crisis? How the COVID labour market crisis affects women), in Filipič, U. and Schönauer, A. 
(eds), Ein Jahr Corona: Ausblick Zukunft der Arbeit (A year of coronavirus: prospects for the future of work), Vienna, ÖGB-
Verlag, pp. 56-68, available at: https://www.ssoar.info/ssoar/bitstream/handle/document/72645/ssoar-2021-foissner_et_al-
Krisengewinner_Patriarchat_Wie_die_COVID-Arbeitsmarktkrise.pdf?sequence=1&isAllowed=y&lnkname=ssoar-2021-
foissner_et_al-Krisengewinner_Patriarchat_Wie_die_COVID-Arbeitsmarktkrise.pdf.

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showed that women spent much more time than men doing domestic and care work. A positive change 
identified by the survey was the increased involvement of young men in domestic work.531

The  German  expert  notes  that  more  generally,  it  is  without  a  doubt  that  women  carried  most  of  the 
additional burden related to child and other care within the context of the closure of schools, nurseries, 
and other care facilities. Indeed, there is significant evidence that women took up most of the additional 
care work, whether employed or not and irrespective of fathers’ presence at home during working hours.532

In  Greece,  a  survey  on  the  impact  of  the  pandemic  on  daily  life  and  work  during  the  first  lockdown 
showed that almost one in two women engaged more with housework during the pandemic and lockdown 
whereas this was the case with 2 out of 10 men.533 According to another survey, the lockdown has added 
a very big or big burden of family responsibilities to female researchers; the latter also experienced a 
high level to a very high level of personal psychological strain due to the lockdown and social-distancing 
measures at a significantly higher percentage than their male colleagues.534 

The authors of a study on the impact of COVID-19 on the gender division of childcare tasks in Hungary 
conclude that, during the pandemic (especially during lockdown), gender inequality increased regarding 
the amount of time dedicated to childcare, especially among college-educated parents, urban parents and 
parents working from home. According to the authors, this suggests that ‘even when men are physically 
present in the household, even if the burden of reproductive work increases suddenly and significantly, 
women are expected to shoulder a larger share’.535 

The  coronavirus  crisis  also  brought  considerable  changes  to  work-life  balance  in  the  Netherlands. 
According  to  annual  research  by  recruitment  bureau  Hay,  work-life  balance  deteriorated  due  to  the 
lockdowns.536 By the end of 2020 only half of Dutch workers were positive about their work-life balance. 
Overall, 39 % indicated that things had become worse since the start of the pandemic. This was especially 
the case for working parents during the periods when schools were closed. In addition, research bureau 
TNO reported that working parents, in particular, indicated that it was hard for them to combine work and 
care.537 The coronavirus crisis appears not to have influenced the division of work and care tasks between 
men and women. After the first months of the lockdown in 2020, 31 % of fathers indicated in a survey 
that,  since  the  beginning  of  the  pandemic,  they  had  spent  more  time  with  their  children  than  before. 
However, women still perform the largest proportion of care tasks. In a survey from June 2020 mothers 
indicated that they spent 14.3 hours a week more on care tasks because of the lockdown, whereas for 

531  Bashevska, M. (2020), Rapid gender assessment: The impact of COVID-19 on women and men in North Macedonia, UN Women, 

https://www2.unwomen.org/-/media/field%20office%20eca/attachments/publications/2020/09/rga_the%20impact%20
of%20covid-19_nm_eng_final_2020_09_29-min.pdf?la=en&vs=2420, pp. 31-33, 39.

532  Gundula Zoch, Ann-Christin Bächmann, B. Vicari, ‘Who cares when care closes? Care-arrangements and parental working 

conditions during the COVID-19 pandemic in Germany’ [2021] 23(1) European Societies 576-588; Jonas Jessen, C. Katharina 
Spiess Sevrin Waights Katharina Wrohlich, ‘Sharing the Caring? The Gender Division of Care Work during the COVID-19 
Pandemic in Germany’ IZA DP No. 14457 available at: http://ftp.iza.org/dp14457.pdf; Alison Andrew, Sarah Cattan, Monica 
Costa Dias, Christine Farquharson, Lucy Kraftman, Sonya Krutikova, Angus Phimister, Almudena Sevilla, ‘The Gendered 
Division of Paid and Domestic Work under Lockdown’ IZA DP No. 13500 available at: http://ftp.iza.org/dp13500.pdf.

533  A survey on ‘The Impact of the Pandemic on Daily Life and Work’ conducted by the Hellenic-American Chamber 
of Commerce in the period 23 April-1 May 2020, https://www.amcham.gr/wp-content/uploads/2020/05/
GenderImpactOfPandemic2020.ENGLISH.pdf.

534  A survey ‘COVID-19 and young Greek researchers – The influence of the pandemic on their research activity’ published in 

May 2020 by the National Documentation Centre (EKT). See the Research (in Greek) available at: https://metrics.ekt.gr/
sites/metrics-ekt/files/ekdoseis-pdf/2020/EKT_COVID19_GreekResearchers.pdf and a research note (in English), available 
at: https://metrics.ekt.gr/sites/metrics-ekt/files/ekdoseis-pdf/2020/ResearchNote_EKT_COVID19_GreekResearchers.pdf. 

535  Fodor, É., Gregor, A., Koltai, J., Kováts, E. (2021) ‘The impact of COVID-19 on the gender division of childcare work in 
Hungary’, European Societies, vol. 23, issue sup1, pp. S107, https://doi.org/10.1080/14616696.2020.1817522.

536  Hays (2020), What workers want, 2020. Available at: https://www.hays.nl/what-workers-want/2020. 
537  TNO (2020), Zorgtaken maken verschil tussen ontspannen of gestreste coronatijd (Caring responsibilities mean the difference 

between a relaxed or a stressful coronavirus period). Available at: https://www.monitorarbeid.tno.nl/nl-nl/blog-splitsen-
zorgtaken/.

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fathers the figure was 10.5 hours a week.538 In other research from September 2020, it was mentioned 
that the coronavirus crisis had hardly had any effect on gender roles.539 

The crisis caused domestic problems in Serbia, due to childcare and home-schooling, having to do grocery 
shopping during working hours, as well as general psychological pressures due to confinement and lack 
of  exercise.540  Civil  servants  often  used  the  working  part  of  the  day  for  telephone  conversations  and 
meetings, doing household chores and taking care of responsibilities around children, and then devoting 
the  evening  hours  to  work  obligations  that  require  greater  concentration,  such  as  preparing  opinions, 
drafting solutions or resolving cases.541 This had a significant effect on work-life balance. 

The  closure  of  schools  and  kindergartens,  and  the  cessation  of  contact  with  elderly  family  members 
made it more difficult to organise childcare and care for elderly and chronically ill household or family 
members.542 The burden of this care most often fell on women. All-day childcare became an additional 
burden for parents who had to go out to work during the epidemic, but also for those who worked from 
home and cared for preschool children or younger primary school children, helping them with school tasks 
and online classes. This work was also done mainly by women, and it posed a particular challenge for 
single parents.

Surveys  show  that  self-isolation  measures  taken  by  the  Turkish  Government  to  slow  the  spread 
of COVID-19 overburdened women with unpaid housework and care work as more family members spent 
time at home. As schools switched to distance learning, most parents’ caring responsibilities increased 
and this responsibility often fell on women. When childcare facilities closed and parents needed to work, 
the responsibility fell on grandmothers, who were in the risk group for COVID-19. For women who also 
needed to work from home, this also meant increased working hours.543

Some surveys provide not only information on the still existing gender care gap and work-life balance 
difficulties during the COVID-19 pandemic, but also the gendered economic and employment impacts of 
the pandemic on specific groups.

In  Germany,  specific  difficulties  arise  regarding  pregnancy  and  maternity  related  entitlements.  The 
entitlements  to  maternity  pay  caused  some  uncertainty  within  the  context  of  the  pandemic-related 
furlough scheme during (temporary) business closures (Kurzarbeit). Specifically, there is some uncertainty 
whether pregnant workers who are not working because they are on maternity leave (6 weeks before 
due date and 8 weeks after birth) or are unable to work during their pregnancy because the employer 
cannot  ensure  a  safe  working  environment,  are  entitled  to  the  maternity  or  related  pay,  even  if  the 
business is closed and they would have been subjected to the furlough scheme if at work. While the scope 
of  entitlements  is  controversial  within  academic  circles,  a  guiding  paper  drafted  by  several  ministries 
indicates  that  due  to  the  structure  of  the  Mutterschutzgesetz  (MuSchG)  and  the  furlough  scheme, 
pregnant workers will still be entitled to maternity and related pay. Specifically, the report indicates that 

538  Yerkes, M. and Remery, C. (Cogis-NL) (2020), COVID gender (in)equality survey Netherlands. Tweede policy brief over de 

539 

periode juni 2020 (COVID gender (in)equality survey Netherlands. Second policy brief for the period of June 2020), Utrecht. 
Available at: https://www.uu.nl/sites/default/files/Policyletter%20COGIS%20juni%202020%20def.pdf. 
Intermediair (2020), Vrouwen de was, man aan het werk. Coronacrisis nauwelijks effect op rolpatronen (Women do the 
washing, men work. Coronavirus crisis hardly affects gender roles). Available at: https://www.intermediair.nl/werk-
privebalans/rolverdeling/vrouwen-de-was-man-aan-het-werk-coronacrisis-nauwelijks-effect-op-rolpatronen.

540  Serbia social briefing: Working at home during pandemic, 15 October 2020, https://china-cee.eu/2020/10/15/serbia-social-

briefing-working-at-home-during-pandemic/.

541  Pajvančić, M., Petrušić, N., Nikolin, S., Vladisavljević, A., Baćanović, V., Rodna analiza odgovora na COVID-19 u Republici Srbiji 
(Gender perspective to the response to COVID-19 in the Republic of Serbia), OSCE, Belgrade, March-May 2020, 137.
542  Pajvančić, M., Petrušić, N., Nikolin, S., Vladisavljević, A., Baćanović, V., Rodna analiza odgovora na COVID-19 u Republici Srbiji 
(Gender perspective to the response to COVID-19 in the Republic of Serbia), OSCE, Belgrade, March-May 2020, 118.
543  See Bakirci, K. (2020), ‘Flash Report: Impact of COVID-19 measures on women in Turkey’, European network of legal experts 
in gender equality and non-discrimination, 3 July 2020, https://www.equalitylaw.eu/downloads/5171-turkey-impacts-
of-covid-19-measures-on-women-in-turkey-118-kb; UN Women Turkey Office (2020), The economic and social impact 
of COVID-19 on women and men: Rapid gender assessment of COVID-19 implications in Turkey https://reliefweb.int/sites/
reliefweb.int/files/resources/73989_rapidgenderassessmentreportturkey.pdf.

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the furlough scheme covers workers that are available to work only, which does not include workers who 
are on maternity leave or cannot work due to their pregnancy.544 Various states limited the possibility for 
pregnant workers to work, within the context of lockdowns and isolation measures as more workplaces 
were considered to be high risk areas. 

The latest UNDP Montenegro report, Women’s	contribution	to	the	economy	of	Montenegro	–	Utilisation	
of	 care	 economy	 during	 COVID-19,  estimates  that  women’s  work  in  the  domain  of  unpaid  work  and 
domestic care exceeded that done by men by 92 %. The monetary value of such work and care has been 
estimated at EUR 122 million during the first 3 months of the COVID-19 pandemic, that is, from April to 
June 2020. While 11 % of women reported that they usually do not do any domestic work, the share of 
men who reported the same was 42 %. The share of women among the newly unemployed reached 56 % 
in the same reference period, with COVID-19 leading to an overall drop in women’s net earnings, which 
cumulatively amounted to a EUR 2.34 million reduction in earnings. The report notes that, even before 
the pandemic, the GDP per capita for women was only 86 % of the national average GDP, compared to 
114 % for men. The report also notes that, although the virus itself does not discriminate, the effects 
of COVID-19 are anything but gender neutral, given that the immediate and long-term consequences of 
the pandemic affect women in particular. The largest increase in the number of unemployed women was 
recorded in the 31- to- 40-year age group, while the category of unemployed women who have been 
looking for work for up to one year has increased by as much as 38.7 %.545

Surveys in Norway show that the redundancies and unemployment hit hardest in the age group where 
most people have children. The reports also highlight the risk for the current parental benefits system 
to contribute to a more difficult situation for expectant parents who have lost their job or have been laid 
off.546  Today,  parental  benefit  is  calculated  based  on  the  last  3  or  12  months  before  the  leave  starts. 
This also applies to freelancers and those laid off who only receive 64.2 % of their income. For pregnant 
women who have been laid off or left without work throughout or in part of 2020, this may result in a 
significantly lower income during the entire leave period. This will apply even if other people laid off in 
the businesses they work in are brought back to work. For freelancers the scheme may mean that some 
women will be forced to work extra hard in the last three months before their leave to make up for the 
lost income in the last year, which may result in health consequences for the pregnant worker. Another 
consequence of the COVID-19 pandemic is that the father/co-mother will have to postpone the use of the 
parental quota reserved for them due to economic difficulties in their family.

4.11.2	 Specific	COVID-19-related	work-life	balance	measures	at	national	level

In  addition  to  measures  on  remote  working/homeworking  described  in  Section  4.9,  specific  legislative 
measures547  were  taken  in  countries  to  support  parents  and/or  carers  who  had  to  work  remotely  and 
support  their  children.  In  many  countries  the  measures  took  the  form  of  specific  leave  with  related 
allowances. In Belgium a ‘corona parental leave’ with an allowance increased by 25 %548 was introduced, 
which was replaced by an extension of the benefits of the temporary unemployment scheme for force	
majeure to employees in the event of the closure of a school, childcare centre or day-care centre for 
people with disabilities or because a child has to quarantine. The worker receives an allowance of 70 % 

544  Bewertung des Bundesministeriums für Familie, Senioren, Frauen und Jugend in cooporation with Bundesministerien für 

Gesundheit und für Arbeit und Soziales (2020) Orientierungspapier „Mutterschaftsleistungen bei Kurzarbeit https://www.
bmfsfj.de/resource/blob/173850/d4bc3e12ad12e611a76062b53b74bfc4/20210226-informationsblatt-schwangere-corona-
data.pdf.

545  Vukovic, M. (2020) Women’s contribution to the economy of Montenegro – Utilisation of care in the time of the Covid-19 pandemic 
https://www.me.undp.org/content/montenegro/en/home/presscenter/pressreleases/2020/Women_Care_Work.html.
546  Kilden Gender Research ‘Likestillingskonsekvenser av koronapandemien Arbeidsliv og økonomi’ (Consequences for gender 
equality because of the COVID-19 pandemic. Working life and economy) https://kjonnsforskning.no/sites/default/files/
notat_bufdir_likestillingskonsekvenser_av_koronapandemien_arbeidsliv_og_okonomi.pdf.
In Liechtenstein, in April 2020 an initiative of an employees’ interest group (LANV) sought to obtain fair working conditions 
for employed parents who struggled with juggling the obligation to work and the obligation to look after their children 
when schools were closed: https://www.menschenrechte.li/lanvpetitionberufstaetigeeltern/. 

547 

548  The gross parental leave allowance is, for example, EUR 532 for half-time parental leave for a worker under 50.

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of the average salary. In addition, a system of parental benefit was adopted to support self-employed 
workers who have to partially interrupt their activities during the pandemic.549

Similarly, in Austria, a special type of leave with full pay was instituted for individuals with care obligations 
for children under 14 years of age or other dependents in need of care (Sonderbetreuungszeit). This kind 
of leave is available for a total of four weeks, if care facilities, kindergartens or schools are closed due 
to the pandemic.550

In Czechia the possible length of care leave was extended from nine days to the whole period of school 
closures during the pandemic. Simultaneously, people working on types of contract other than a standard 
full-time employment contract (such as irregular, part-time and precarious jobs) could also apply for this 
type of support, even though they could not do so outside of the pandemic.551 Such leave also became 
available for self-employed people.

In Denmark a tripartite agreement provided an extra period of 10 days of parental leave with a right to 
benefits for parents with children under 14 years in situations where children were sent home from school 
due to closure of classes or schools to reduce the risk of spreading infection.

In the context of the COVID-19 pandemic, the entitlements to care for a close relative in Germany for 
the year 2020 were amended and are now 15 working days552 for each child (30 days for single parents) 
with an absolute maximum of 35 working days (70 for single parents).553

A ‘special purpose’ leave was available to working parents in the private and the public sector in Greece 
under certain conditions. In the private sector, for every three days of the ‘special purpose’ leave, the 
workers had to use one day of their annual leave. As a rule, two thirds of the cost of the days of said leave 
were covered by the employer and one third thereof was covered by the state.554 In the public sector, for 
every four days of absence, three days were considered by the competent service as justified absence 
due to the suspension of the functioning of the above establishments and were fully paid, and one day 
was considered as annual leave. If the employee was absent for less than four days, these days were all 
considered as annual leave.555 If the employees concerned had exhausted their annual leave (fourth day), 
they could use any other leave available, either paid or unpaid (e.g. leave for school visits, leave to care for 
a sick child and unpaid leave).556 In addition, employees with children are entitled to reduced daily working 
hours up to 25 % upon agreement with the employer.557 Fully paid leave in the public sector and specific 
protection measures can be requested by pregnant workers in both the public sector and private sector. 
Pregnant workers were thus for the first time considered as a group of workers at high risk for COVID-19. 

During  the  COVID-19  pandemic,  leave  for  family  reasons  was  used  in  Luxembourg  as  the  main  tool 
for  compensating  the  loss  of  parents’  income  in  the  event  of  an  interruption  to  work  due  to  a  child 

549  Belgium, Royal Decree of 4 June 2020 granting a parental allowance to self-employed people who partially interrupt their 

self-employment as part of the measures to combat the spread of the COVID-19 coronavirus (Arrêté Royal du 4 juin 2020 
accordant une allocation parentale en faveur du travailleur indépendant qui interrompt partiellement son activité indépendante dans 
le cadre des mesures de lutte contre la propagation du coronavirus COVID-19), Moniteur belge/Belgisch Staatsblad, 10.06.2020. 

550  Law Amending the Labour Contract Law (Arbeitsvertragrechtsanpassungsgesetz, AVRAG), Paragraph 18b.
551  ČSSZ (2020), ‘Aktuální informace k ošetřovnému z důvodu uzavření škol’ (Current information regarding care leave) – 

information website, available at: https://www.cssz.cz/aktualni-informace-k-osetrovnemu.
 Instead of a maximum of 10 days.

552 
553  Act on the future of hospitals (Krankenhauszukunftsgesetz) Act of 23 October 2020, Official Journal 2020 (BGBl. I no 45), 

p. 2208.

554  Greece, Article 4(3) of the ALC of 11 March 2020, OJ A 55/11.03.2020, sanctioned by Article 2 Act 4682/2020,  

OJ A 76/03.04.2020.

555  The specific conditions of entitlement in the following cases are defined in detail in the ALC of 11 March 2020: (1) Where 

both parents are public servants; (2) where one parent is employed in the public sector and the other in the private sector; 
(3) where the employee’s spouse is employed in the public sector and at the same time is on any other leave (parental 
leave, maternity leave, sabbatical leave); (4) where the employee’s spouse is not employed; (5) in the case of divorce and  
(6) in the case of single-parent families.

556  Circular of the Ministry of Labour and Social Affairs 39683/1259/1.10.2020.
557  Article 35 Act 4690/2020.

143

quarantining, school closure or any other measure applicable to children in relation to the health crisis. 
A new form of care leave, ‘leave for family support’, was also created during this period. This leave was 
available to employees or self-employed people who had to provide care at home for a disabled adult or 
an elderly person whose care institution partially or totally shut down its activities in the context of the 
pandemic. The costs of such leave were met by of the National Health Fund.558 Such leave could not be 
taken at the same time as short-time working. 

In Latvia, the right to parental leave and allowance was extended during the COVID-19 crisis for those 
parents whose right to parental leave would normally have ended. This longer leave was available to 
parents unable to return to work, because of a lack of work (at their workplace) or because the workplace 
was closed, or due to a ban on the provision of services or selling of goods (for the self-employed). This 
means that parents with a child who attained the relevant age (12 months or 18 months) continued to be 
on parental leave with a parental allowance (though not exceeding EUR 700 monthly).559

Based  on  a  decision  by  the  state  body  responsible  for  education  in  Montenegro,  while  kindergartens 
and schools are closed, the right to take paid leave from work is provided for the parent, guardian, foster 
parent, adoptive parent or single parent of a child who is not older than 11 years of age, and of a child with 
special educational needs or developmental disabilities. However, the right to paid leave was not provided 
for employees in the healthcare and security sectors, employees of institutions providing accommodation 
for social and child protection reasons, and employees of the protection and rescue services, as well as 
in other bodies, services and legal entities whose activity is an indispensable condition of life and work 
(key  workers),  unless  both  parents  are  employed  by  these  employers.560  According  to  research  by  the 
Montenegrin  Employers  Federation,  the  most  common  labour  relations  measures  taken  by  economic 
entities as a result of the COVID-19 crisis are: the introduction of working from home (32 %), introduction 
of part-time working (26 %) and enabling the use of annual leave (21 %). Working from home was used 
least in micro enterprises (28 %), and most in large enterprises (80 %), while the introduction of part-
time working was used the least in micro companies (18 %), and the most in large companies (47 %).561 

During the COVID-19 crisis, a specific paid leave was established in Portugal, allowing working parents to 
stay at home to take care of children under 12 years old who had to stay at home due to school closures 
or for medical reasons. These parents benefited from a public allowance granted by the social security 
system. Some months after this special leave was put in place, a public survey concluded that almost 90 
% of these periods of leave had been taken by mothers, while fathers kept on working.562

The COVID-19 pandemic prompted the Government of Romania to adopt measures to support parents 
whose  children  had  to  be  schooled  at  home.  Paid  days  off  were  available  to  one  of  the  parents  for 
supervising their children during the temporary closure of schools. These days were paid up to 75 % of 
the salary but not more than 75 % of the average salary decided at the national level for the year 2020 
(approximately EUR 1 130).563 This financial help was provided under various conditions: the child is under 
12 years old or is under 26 years old in case of people with disabilities; the child is enrolled in the school 
system; and the job does not allow working from home or teleworking. Some groups of ‘essential’ workers 

558 

In November 2020, a law was passed in Parliament, which approved a state grant of EUR 386 million covering the costs of 
the sickness benefit in cash, leave for family reasons and leave for family support in relation to the COVID-19 pandemic. The 
funding will be spread over four budget years. 

559  Amendments to the Law on Maternity and Sickness Insurance (grozījumi likumā ‘Par maternitātes un slimības apdrošināšanu’), 

Official Gazette No. 67B, 4 April 2020, and No. 244, 17 December 2020.

560  Official Gazette, Nos 103/2020 and 5/2021.
561  Montenegrin Employers Federation (2020) ‘The Impact of the COVID-19 Pandemic on Enterprises in Montenegro: 

Challenges and Expectations’, available at: http://poslodavci.org/en/publications/report-on-the-impact-of-the-covid-19-
pandemic-on-enterprises-in-montenegro-challenges-and-expectations.

562  This information was disclosed in a meeting of the CIG – Commission for Equality and Citizenship – by the Minister in 

charge of equality issues.

563  Romania, Law No. 19/2020 on paid days off granted to parents for supervising their children upon the temporary closure 
of schools on 2 March 2020, amended by Government Emergency Ordinance No. 30/2020 (Legea nr. 19/2020 privind zilele 
libere plătite acordate părinților pentru supravegherea copiilor în situația închiderii temporare a unităților de învățământ, 
modificată prin Ordonanța de Urgență a Guvernului nr. 30/2020).

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Pregnancy, maternity, paternity, parental and other types of leave related to work-life balance

could receive this benefit only with the agreement of the employer who had to ensure the continuity of 
the service (e.g. telecommunications, water and energy supply). 

At  the  same  time,  parents  who  were  on  parental  leave  and  whose  field  of  work  was  affected  by  the 
restrictions related to the COVID-19 pandemic could ask for a prolonged period of leave until the end of 
2020. The allowance for parents who come back from parental leave before the child is two years old 
will continue to be paid up until the child is three years old for the duration of the COVID-19 pandemic.564 

Italy expanded not only leave possibilities, but also introduced temporary allowances in order mitigate 
the  negative  effects  on  gender  equality  and  work-life  balance  in  both  the  private  and  public  sectors 
during several periods in 2020.565 This legislation included strengthening the right to parental leave and 
economic support for families with care duties, including the right for those assisting a disabled relative 
to carry out their work through smart working. It provided for special leave, to be taken, alternatively, by 
parents of children up to 12 years old or of seriously disabled children (in this case an allowance of 50 % 
of the remuneration and figurative contributions were granted). 

In addition, unpaid leave could be taken for the whole period during which school activities were suspended 
by employees taking care of children up to 16 years old. As an alternative to the leave mentioned above, 
a voucher for babysitting services was provided for working parents (employed and self-employed) of 
children aged 12 years or younger. A further 12 days every two months of paid leave were added to 
the ordinary three days a month time off available to workers in both the private and the public sectors 
assisting a relative with a registered serious disability.566 Housekeepers and care workers with a contract 
of at least 11 hours a week were entitled to a temporary monthly allowance, on the condition that they 
did not live with their employers. In addition, a right to ‘smart working’ was available to various groups of 
parents (provided that the job could be performed in this way) until the end of the COVID-19 emergency 
period. 

In some countries, allowances were only made available to certain groups. Despite discussions that took 
place and calls from NGOs and representatives of parents in Bulgaria to introduce periods of special 
paid leave during the pandemic and the days needed for quarantine, the solution proposed by the state 
provided for targeted social assistance for parents instead. The scheme for this assistance encompasses 
the  following  cases:  parent(s)  who  cannot  work  remotely  and  have  no  opportunity  to  take  paid  leave; 
unemployed parent(s) who are not entitled to unemployment or other benefits; self-employed parent(s) 
who  cannot  exercise  their  profession  during  this  period;  parent(s)  who  do  not  receive  pregnancy  and 
maternity  benefits;  families  that  satisfy  the  means  tests  of  average  income  equal  to  a  maximum  of 
150 % of the minimum wage for each member of the family.567 The amount per month per family in the 
case of the child/children staying at home for 10 days is about EUR 325 for 1 child and EUR 490 for two 
children.

In Cyprus, a special benefit was available during the COVID-19 crisis for parents who were absent from 
work with children under 15 years old or disabled children regardless of age.568 The aim was to provide 
economic  support  to  parents  who  could  not  work  remotely  or  flexibly  during  the  pandemic.  While  the 
benefit went some way towards alleviating the impact of the pandemic on working families, the fact that 

564  Romania, Government Emergency Ordinance No. 97/2020 of 11 June 2020 on the implementation of measures for 

administrative simplification in the field of social protection, as well as measures for granting rights and benefits of social 
assistance in the field of activity affected by restrictions (Ordonanta urgenta 97/2020 pentru implementarea unor măsuri 
de simplificare administrativă în domeniul protecţiei sociale, precum şi pentru acordarea unor drepturi şi beneficii de asistenţă 
socială în domeniile de activitate în care se menţin restricţii). 
Italy, Laws 27/2020, 77/2020, 126/2020 and 176/2020.
Italy, Article 33 of Law 104/1990.

565 
566 
567  https://asp.government.bg/bg/deynosti/sotsialno-podpomagane/mesechna-tseleva-pomosht-za-semeystva-s-detsa-do-

14-godishna-vazrast-pri-obyaveno-izvanredno-polozhenie-ili-obyavena-izvanredna-epidemichna-obstanovka.

568  Cyprus, Special Leave for Childcare Decision 20/2020. 

145

beneficiaries could only claim a percentage of their salary meant that many women in low-paid sectors 
were either discouraged from staying at home or suffered a significant loss of income.

After  schools  were  closed  in  Malta  as  a  measure  to  combat  the  spread  of  the  COVID-19  pandemic, 
parents of children under 16 who could not go to work due to taking care of children were entitled to a 
benefit. People who were eligible received a direct payment of EUR 166.15 per week if working full-time 
or EUR 103.85 per week if working part-time. Moreover, social security contributions were paid in order to 
safeguard future contributory pension rights.569 

The most significant measure taken in Poland was the introduction of the right to an additional care 
allowance, amounting to 80  % of the allowance base, in the event of the closure of a nursery, children’s 
club, kindergarten, school or other institution attended by a child, or the inability to provide care by a 
nanny or day-care provider, due to the COVID-19 pandemic. This allowance could be received until the 
specified deadline, by the insured person who decided to suspend their work due to the need to personally 
look after a child under eight. The additional care allowance was payable despite the re-opening of the 
above  facilities,  if  the  insured  person  decided  to  continue  to  look  after  the  child  personally.570  It  may 
be suspected (although no research results are available yet) that the obligation to care for dependent 
children over the age of eight – at the expense of work – was carried out mainly by women. Also, the 
provision referring to the possibility of receiving the allowance even when the care institutions were re-
opened, could translate into more frequent incidences of women resigning from work, in order to intensify 
care activities at home. 

In Slovakia, a new benefit scheme for caregivers, known as ‘pandemic nursing benefit’, was established 
which, according to the Social Insurance Agency, was in most cases used by women.571 This benefit was 
available to employees, people entitled to compulsory or voluntary sickness insurance and people whose 
protected  period  of  sickness  insurance  had  ended.  The  benefit  has  a  fixed  rate  of  55  %  of  the  daily 
assessment basis or the probable daily assessment basis. In relation to children whose attendance at 
school was compulsory, entitlement to ‘pandemic nursing benefit’ only applied to those caring for children 
under 11 years of age (up to 18 years of age for children with a long-term health condition), due to the 
fact that the pupil’s school / class was closed by a decision of the competent authority (school director or 
public health officials). An entitled person caring for a sick child under 16 years of age, i.e. a child whose 
condition had suddenly deteriorated and the attending physician had therefore confirmed the need for 
nursing, was for this time entitled to pandemic nursing benefit. In the case of children attending a pre-
school setting, their parents were only entitled to the ‘pandemic nursing benefit’ if the kindergarten was 
closed by decision of the competent authority.572

This  measure  was  criticised  as  rather  problematic  because  the  amount  was  lower  than  the  parent’s 
normal  income.  This  could  cause  problems  for  single-parent  families,  of  whom  more  than  90  %  are 
women.  It  would  therefore  be  appropriate  to  reconsider  the  amount  of  the  pandemic  nursing  benefit. 
Another problem is that if a parent, mostly a woman, receives this allowance for a longer period of time, 
it  can  lead  to  employers  deciding  to  dismiss  such  workers  after  their  return  to  work  or  not  renewing 

569  https://www.servizz.gov.mt/en/Pages/Inclusion_-Equality-and-Social-Welfare/COVID-19-Social-Measures/Social-Measures/
WEB05171/default.aspx. https://home.kpmg/xx/en/home/insights/2020/04/malta-government-and-institution-measures-
in-response-to-covid.html.

570  Poland, Article 4 of the Act of 2/03/2020 on special solutions related to the prevention and combating of COVID-19, other 

infectious diseases and crisis situations caused by them, JoL of 2020, item 374 as amended.

571  https://www.socpoist.sk/information-about-coronavirus/68406s.
572  During the COVID-19 crisis, the Social Insurance Agency expanded the group of parents who were entitled to pandemic 
nursing benefit to children in various life situations. Parents who would not otherwise be entitled to the nursing benefit 
thus also received it. These were parents whose period of parental leave had ended and they had been unable to place 
the child in a pre-school facility and parents who had removed their child from private facilities and were subsequently 
unable to place them in another facility or find a childminder who could take care of the child. Parents with sickness insurance 
could also apply for nursing benefit if their child was previously cared for by another person (childminder, grandparents, etc.): 
https://www.socpoist.sk/aktuality-socialna-poistovna-prizna-osetrovne--ocr--aj-rodicom-po-rodicovskej-dovolenke/ 
48411s68517c.

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their  contracts  (if  they  have  been  employed  for  a  fixed-term  period).  It  would  therefore  be  helpful  if 
parents were able or obliged to take turns in receiving pandemic nursing benefit – this would also help to 
distribute unpaid work and domestic care more evenly.573

According to EIGE, ‘essential’ workers – in sectors such as health, care, education etc. – in which women 
are overrepresented faced long working hours and reported difficulties reconciling work and family life.574 
National experts report similar findings in particular when childcare facilities and/or schools were closed 
(e.g. in Albania and Cyprus). The above description of measures taken at national level shows that some 
entitlements were not (always) available to workers in essential sectors (e.g. Montenegro and Romania).

Employees in the health sector worked long hours throughout the year in Sweden, a country in which 
childcare and (with few exceptions) schools for children below 16 years of age remained open during the 
pandemic.

In many countries research shows that it was mostly women who took the available leave and took on 
additional care responsibilities during the COVID-19 pandemic. Yet, some national experts are optimistic 
as regards the long-term effects of flexible working in view of a more equal sharing of care responsibilities 
between men and women (e.g. Bulgaria, Czechia and Portugal). The experiences with flexible working 
hours and teleworking during lockdowns and closing of kindergartens and schools might contribute to 
changes in working patters and workplaces when possible in the future. However, the picture is complex 
as the Italian expert rightly states: ‘All these urgent measures are to be appreciated as they show that 
the economic measures also address gender equality issues. Nevertheless, the economic crisis hit women 
harder because of existing gender inequalities; the pandemic is having a regressive effect on women’s 
participation in the labour market. Most critics already highlighted the need for a really strong and long-
term effort to push for greater gender equality as fast as possible. This is not just to avoid taking a step 
backwards with regard to gender quality, but also for the benefit of economic growth.’

4.11.3  Future prospects

The  transposition  of  the  Work-Life  Balance  Directive  2019/1158  into  national  law  by  2  August  2022 
will provide equal minimum rights for workers in the EU Member States when this directive is correctly 
implemented, as it requires a minimum level of protection for workers to be ensured.575 

Some experts are worried that new legislation might reduce existing rights. For example in Italy, criteria 
for a new regulation have been adopted which include: 

 –

 –

 –

More flexible use of parental leave will have to be provided, in a way that is compatible with the 
employer’s organisational needs and following the provisions of collective agreements. 
Parents will be entitled to five hours remunerated time off to talk to the child’s teachers during the 
school year.
At least  two  months of  parental leave will have to  be given  to  each  parent  as  non-transferrable 
leave. 

According to the Italian expert, the reform of parental leave risks being a step backwards. In fact, the 
current Italian regulation is already very flexible (parental leave can also be taken on an hourly basis), 
while the new reference to the organisational needs of employers could hamper the use of this right. 

573  Kuruc, A. (2021), ‘Miera nezamestnanosti žien v SR sa v treťom štvrťroku 2020 zvýšila až o 25% vplyvom pandémie 

ochorenia COVID-19 oproti roku 2019’ (‘The unemployment rate of women in the Slovak Republic increased by up to 
25 % in the third quarter of 2020 due to the COVID-19 pandemic compared to 2019’), available in Slovak at: https://www.
totojerovnost.eu/index.php/2021/01/22/miera-nezamestnanosti-zien-v-sr-sa-v-tretom-stvrtroku-2020-zvysila-az-o-25-
vplyvom-pandemie-ochorenia-covid-19-oproti-roku-2019/.

574  See https://eige.europa.eu/covid-19-and-gender-equality/essential-workers.
575  Article 16.

147

Moreover, at present, each parent is entitled to six months of parental leave covered by an allowance 
of 30 % of the remuneration paid by the Italian social security agency, the INPS, with a maximum of 
ten months for each child, which can be increased to eleven months where the father takes up at least 
three months of leave. The implementation of the principles provided by the bill, where only two months 
of  leave  are  to  be  assigned  as  non-transferrable,  could  paradoxically  have  an  impact  contrary  to  the 
declared  objectives  of  the  reform.  Moreover,  no  increase  of  the  allowance  has  been  provided  and  the 
latter  is  one  of  the  main  reasons  for  the  scarce  use  of  parental  leave  by  fathers,  along  with  cultural 
reasons. The effect in practice of other initiatives, such as extra funding and allowances to support family 
policies and the development of crèches by municipalities, is still awaited.

The country reports by the 36 national gender experts of the European network of legal experts in gender 
equality and non-discrimination576 show that workers – as well as self-employed people –often have more 
rights under national than under EU law. For example, in France, the right to bereavement leave has been 
extended. In Italy, a period of leave of three months is given to female victims of gender-based violence 
who are under a protection programme certified by local authorities.

576  Available at: https://www.equalitylaw.eu/country.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 20215	 Occupational	pension	schemes	(Chapter	2	of	Directive	2006/54)

The CJEU has made clear in its case law – in particular in the famous Barber judgment577 – that occupational 
pension  schemes  are  to  be  considered  as  pay.  Therefore,  the  principle  of  equal  treatment  applies  to 
these schemes as well. According to the CJEU, and in contrast to the so-called statutory schemes, to be 
discussed in Section 6, Article 157 TFEU applies to schemes which are:

i) 

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

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

The  most  important  consequence  of  this  case  law  was  that  certain  aspects  of  Occupational  Social 
Security  Schemes  Directive  86/378/EEC,  which  was  adopted  in  the  meantime,  were  contrary  to  what 
is  now  Article  157  TFEU  and  had  to  be  amended.578  The  most  salient  forms  of  discrimination  in  this 
Directive  were  maintaining  the  different  pensionable  ages  for  women  and  men  and  the  exclusion  of 
survivor’s benefits for widowers.579 In the light of the CJEU’s case law, these forms of discrimination are no 
longer allowed. Similarly, in relation to the use of gender-segregated and different actuarial factors – in 
particular the different life expectancy of women and men (i.e. the fact that on average women live longer 
which also means that they need old-age pensions for a longer period of time) – the CJEU ‘corrected’ the 
Occupational Social Security Schemes Directive to a certain extent. The case law on occupational pensions 
had a considerable impact on equal treatment in occupational pension schemes in those Member States 
where it was previously believed that what is now Article 157 TFEU was not applicable and certain forms 
of discrimination were still allowed.

The  case  law  on  occupational  social  security  schemes  is  now  codified  in  Chapter  2  of  Gender  Recast 
Directive 2006/54/EC. 

5.1	 Direct	and	indirect	sex	discrimination	in	occupational	social	security	schemes

Most countries have prohibited direct and indirect discrimination on the ground of sex in occupational 
social  security  schemes.  This  is  not  done  explicitly  in  Albania,  Germany,  Latvia,  Poland,  Sweden 
and Turkey. In Sweden, for example, the payments in occupational pension schemes are – in parallel 
with  the  case  law  of  the  CJEU  –  regarded  as  pay  and  are  thus  covered  by  the  ban  on  (among  other 
grounds) gender discrimination in the Discrimination Act. This ban covers all types of employer decisions; 
occupational pension schemes are not mentioned explicitly. In Turkey, there is no specific prohibition as 
regards occupational schemes but the constitutional rule on gender equality applies to state schemes as 
well as occupational schemes. In Serbia there are no occupational pension schemes.

5.2	 Personal	scope

Article 6 of Gender Recast Directive 2006/54/EC defines the personal scope of Chapter 2 as follows: ‘This 
Chapter  shall  apply  to  members  of  the  working  population,  including  self-employed  persons,  persons 
whose  activity  is  interrupted  by  illness,  maternity,  accident  or  involuntary  unemployment  and  persons 
seeking employment and to retired and disabled workers, and to those claiming under them, in accordance 
with national law and/or practice.’

577  Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange Assurance Group [1990] ECR I-1889.
578  Directive 86/378/EEC was amended by Directive 96/97/EC, and has now been repealed by Recast Directive 2006/54/EC.
579  Strictly speaking, there is, under CJEU case law, a difference between the retirement age in the sense of the age at which 

women or men have to leave their employment, which must be equal, and the age at which women and men qualify 
for their old-age and related pensions. In certain schemes this difference can be maintained, see Section 6 on Statutory 
Schemes of Social Security.

149

In most countries the personal scope is the same as in the Directive. However, some national experts 
report that the personal scope of national law relating to occupational social security schemes is more 
restricted than in  the Directive (Austria, Estonia, North  Macedonia, Slovenia, Turkey).  In Austria, 
for example, where occupational pension schemes are not widespread, the personal scope of the two 
applicable  laws  (the  Act  on  Occupational  Pension  Schemes  (Betriebspensionsgesetz)  and  the  Act  on 
Private  Pension  Bearers  (Pensionskassengesetz)  covers  every  worker  and  employee  working  under  a 
private contract whose employer has established an occupational social security scheme, including board 
members. The laws cannot be applied to unemployed people or people on sick leave with social security 
benefits or during periods of disability. In Germany, the personal scope is more restricted as self-employed 
people (and freelancers) cannot normally take part in occupational pension schemes. The expert from the 
United Kingdom expresses concern as to the extent of application of the Equality Act and the equivalent 
provisions in Northern Irish law to the self-employed: in Jivraj	v. Hashwani	the Supreme Court indicated 
that autonomous workers were not within the concept of ‘worker’ for the purposes of UK discrimination 
law provisions.580 

5.3	 Material	scope

Article 7 of Gender Recast Directive 2006/54/EC defines the material scope of Chapter 2. On the basis 
of  this  provision,  occupational  schemes  which  provide  protection  against  sickness,  ‘invalidity’,  old  age 
including early retirement, industrial accidents and occupational diseases, unemployment, and occupational 
schemes which provide for other benefits in particular survivor’s benefits and family allowances, all fall 
under the scope of the Directive. 

In most countries the same material scope applies (e.g. Cyprus, Czechia, Denmark, Finland, France, 
Greece,  Hungary,  Liechtenstein,  Lithuania,  Malta,  Netherlands,  Norway,  Portugal,  Slovakia, 
Sweden, Turkey, United Kingdom). 

A few experts report that national legislation relating to occupational social security is more restricted 
than in the Directive (Croatia, Germany, North Macedonia, Poland, Slovenia). 

5.4	 Exclusions	from	material	scope	

Article  8  of  Gender  Recast  Directive  2006/54/EC  provides  that  certain  contracts  and  schemes  can  be 
excluded from the material scope of the Directive. Most countries did not make use of this possibility. 
Experts  from  Cyprus,  Czechia,  Germany,  Greece,  Ireland,  Liechtenstein,  Malta,  Portugal  and 
Turkey report that the national legislator has made use of this exclusion clause. Czechia, Greece and 
Portugal have adopted Article 8 verbatim in their national law. The most common exclusion appears to 
relate  to  self-employed  people.  In  Germany,  self-employed  people  (and  freelancers)  cannot  normally 
take  part  in  occupational  pension  schemes.  Similarly,  in  Turkey  there  are  no  mandatory  occupational 
pension plans for the self-employed.

5.5	 Case	law	and	examples	of	sex	discrimination

Article 9 of Gender Recast Directive 2006/54/EC gives several examples of discrimination. While most 
countries appear to be free from the types of discrimination mentioned in this article and many experts 
report that there is no case law, some national experts have reported problems. Much of the case law at 
national level dates from some time ago. Current cases and developments are discussed below.

Article 9(1)f prohibits different retirement ages for men and women. As of 2018, the application of a 
different pensionable age for men and women in Italy has come to an end. In North Macedonia, on 

580  United Kingdom, [2011] UKSC 40.

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the  basis  of  the  main  pension  legislation  (Article  18  of  the  Law  on  Pension  and  Disability  Insurance), 
there are still different retirement ages for men and women (64 versus 62). In addition, the calculation 
of pension regarding disability is different for men and women (Article 52). In 2016, the Constitutional 
Court held that the difference in retirement age does not constitute sex discrimination. Instead, the Court 
characterised the difference as positive discrimination, based on the special societal protection of mothers 
and motherhood. 

Apart from different retirement ages, other problems and developments also appear. In Belgium, the 
Court of Cassation fairly recently found that, as the Gender Act of 10 May 2007 is d’ordre	public, a retired 
female worker could rely on Article 12 of the Act to reclaim occupational disability benefits which had 
been denied to her when she had reached the age of 60 (before the Act came into force), while they would 
have been allowed for a man up to the age of 65.581 In Finland differential actuarial factors have been 
problematic. This will be discussed under statutory schemes. In Germany, while the law no longer permits 
different retirement ages for men and women, indirect sex discrimination remains a major problem. The 
Federal Labour Court has held that a failure to take periods of bringing up children into consideration for 
the purpose of occupational pensions constitutes neither direct nor indirect discrimination on the grounds 
of sex and does not violate European or national constitutional law.582 The condition of a 15-year period 
of service for the same employer in order to be entitled to occupational pensions was not considered to 
constitute indirect sex discrimination either.583 The Federal Labour Court explicitly rejects the addition of 
(interrupted) periods of service for the same employer.584

The Icelandic expert reported an interesting 2012 Supreme Court case. The Supreme Court held that the 
pension rights of a man in a divorce case did not fall under ‘marriage property’ under the Law in Respect 
of  Marriage.585  The  claimant  in  this  case,  the  former  wife,  referred  to  Article  102(2)  of  the  Marriage 
Act  which  states  that  pension  rights  should  not  be  excluded  from  divorce  settlements  if  apparently 
unreasonable.  The  couple  in  this  case  had  been  married  for  35  years  and  had  had  four  children.  His 
income had been considerably higher than hers, as she had not been working full-time, and subsequently 
he  was  expecting  a  higher  old-age  pension,  albeit  no  concrete  calculation  was  presented  with  regard 
to their expected pensions. The Supreme Court held that pension rights in case of divorce should only 
be  shared  in  exceptional  circumstances  as  the  general  principle  in  the  law  is  that  pension  rights  are 
not to be shared in the case of divorce. The Supreme Court in assessing whether these circumstances 
were exceptional, held that all circumstances must be scrutinised in context; the claimant (the wife) had 
acquired her own pension rights with her work outside the home and it had to be assumed that she would 
be  able  to  increase  her  entitlement  to  pension  rights  before  retiring.  The  Supreme  Court  furthermore 
pointed out that there was no explicit evidence regarding the value of the pension rights in question to 
support the claim of exceptional circumstances, hence confirming the ruling of the lower court. 

In  Greece,  there  continue  to  be  issues  of  sex  discrimination  within  the  public  servants’  occupational 
social  security  scheme.  Articles  36  and  40  of  the  Civil  and  Military  Pensions  Code586  continue  to  be 
discriminatory, despite other amendments being made to the Code in response to the CJEU’s judgment in 
C-559/07	European	Commission	v	the	Hellenic	Republic: although, as a rule, both men and women with 
three children are entitled to a pension after 25 years of actual service, irrespective of this condition, the 
length of service in expedition units is recognised as double only for women with three children. The Court 
of Audit by its Judgment 743/2018 (Full Section) found that the above more favourable treatment of 
women constitutes gender discrimination and applied the more favourable conditions to a father of three 
children as well (levelling-up).587 Nevertheless, Article 32(1) of the Civil and Military Pensions Code still 

581  Judgment of 16 September 2013, (2014) Chroniques de droit social/Sociaalrechtelijke Kronieken, p. 282.
582  Germany, Federal Labour Court, judgment of 20 April 2010, 3 AZR 370/08. 
583  Germany, Federal Labour Court, judgment of 12 February 2013, 3 AZR 100/11. 
584  Confirmed by the Federal Labour Court, judgment of 9 October 2012, 3 AZR 477/10. 
585 
586  Greece, Presidential Decree 169/2007, OJ A 210/31.08.2007.
587  The same reasoning was followed by the Court of Audit judgment No. 1268/2018 (Full Section) on the relevant legal 

Iceland, Supreme Court case No. 568/2012.

framework before the amendment enacted by Act 3865/2010 as of 1 January 2011. 

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sets more favourable conditions for the granting of a pension to fathers of deceased military personnel 
than  those  applying  to  mothers.  Although  the  Court  of  Audit588  held  that  mothers  were  entitled  to  a 
pension subject to the same conditions as fathers, the provision remained. 

While  Article  56(1)(2)  of  the  Civil  and  Military  Pensions  Code  has  been  amended  in  order  to  ensure 
that  both  female  and  male  civil  servants  with  minor  children  will  be  eligible  for  the  same  retirement 
age,  this  does  not  apply  during  the  transition  period,  meaning  that  male  civil  servants  who  fulfil  the 
required conditions but reached the more advantageous retirement age previously only applied to women  
(50 years) before 31 December 2010 are not granted the same pension as female civil servants in the 
same position. The Court of Audit (Full Section) held in March 2020 that the more favourable retirement 
ages provided for female civil servants who are mothers of minor children (and the rest of female civil 
servants as well), compared to that provided for male civil servants, constituted direct discrimination in 
pay on the grounds of sex, in breach of Article 141(2) TEC (now Article 157(2) TFEU). In view of this, the 
Court found the impugned provision to be in breach of the principle of equality, as enshrined in the Greek 
Constitution and EU law. 

5.6	 Sex	as	an	actuarial	factor

One particularly difficult issue is the use of actuarial factors in occupational social security schemes when 
they differ depending on sex.589 The use of gender-related actuarial factors is still allowed, within certain 
limits, under the Recast Directive (see Article 9(1)(h) and (j)). 

Gender-related  actuarial  factors  in  occupational  pension  schemes  can  still  be  used  in  Belgium  in 
contracts  concluded  before  20  December  2012,  Czechia,  Germany  (partly),  Greece,  Ireland,  Italy, 
Liechtenstein, Malta, the Netherlands and the United Kingdom. In Germany, lawyers are discussing 
the question of whether the Test-Achats ruling should be applied to occupational pension schemes.590 
In  2013,  the  Higher  Regional  Court  of  Celle  decided  that  the  state  pension  agency  (covering  around 
four million employees in the public sector) is obliged to employ gender-neutral actuarial factors under 
constitutional and European equality law.591 The Higher Regional Court of Cologne disagreed.592 In 2017, 
the Federal Court of Justice decided that the use of different gender-based actuarial factors by the state 
pension agency or by pension schemes organised under private law is incompatible with the prohibition 
of sex/gender discrimination under the German Constitution as well as with Directive 2006/54/EC and the 
Test Achats ruling.593 

In Austria, the Supreme Court found in 2019 that an employer who calculated occupational pensions 
for female employees according to a more favourable method than those for male employees of the 
same  age,  in  order  to  compensate  for  the  gender  pension  gap,  acted  discriminatorily.594  In  2021,  the 
Supreme Court had to consider a similar case that included, among other things, the question of whether 
it constituted pay discrimination based on sex if an employer made, on average, higher contributions to a 
company pension fund for their female than for their male employees in 2021. Due to the fact that the 
limitation period for the claim had already expired, the Supreme Court rejected the review of the case and 
did not examine the substantive question at hand.595

588  Greece, Court of Audit 751/2000.
589  See Jacqmain, J. and Wuiame, N. (2015) Gender based actuarial factors and EU gender equality law, European equality law 

review 2015/1, available at: https://publications.europa.eu/en/publication-detail/-/publication/2bc75714-7955-46e2-a500-
669d41fdf9cf/language-en/format-PDF/source-86561749, pp. 14-24.

590  E.g. Beyer, A., Britz, T. (2013), ‘Zur Umsetzung und zu den Folgen des Unisex-Urteils des EuGH’ (Implementation and 

Consequences of the Test-Achats Ruling) Versicherungsrecht No. 28, pp. 1219-1227; Labour Court of Munich, judgment of 
21 May 2013, 22 Ca 15307/12. 

591  Germany, Higher Regional Court of Celle, judgment of 24 October 2013, 10 UF 195/12. 
592  Germany, Higher Regional Court of Cologne, judgment of 6 January 2015, 12 UF 91/14.
593  Germany, Federal Court of Justice, judgment of 8 March 2017, XII ZB 663/13, with further references. 
594  Austria, Supreme Court, judgment of 27 February 2019, 9 ObA 25/18v.
595  Austria, Supreme Court, judgment of 25 June 2021, 8 ObA 95/20h.

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Latvia has no formal provision allowing gender-based actuarial factors, but in practice these can be used 
in cases where an employer provides an insurance product under an occupational social security scheme 
which does not fall under the Law on Private Pension Funds.

5.7	 Difficulties

A perennial source of confusion is the distinction between occupational schemes and statutory schemes. In 
some countries the characteristics of the national social security system do not correspond to the concept 
of ‘occupational pension schemes’. This led respective governments to believe that it was not necessary 
to transpose the EU provisions on occupational social security schemes, even after the amendments to 
the initial directive by Directive 96/97/EC. The distinction between statutory and occupational schemes is 
(and was) problematic in, for example, Greece (where social security legislation and case law deal with 
all schemes in the same way, without distinguishing between statutory and occupational ones). Another 
problem, signalled by the Latvian expert, constitutes the identification of what falls under the concept 
of  occupational  scheme,  for  example,  does  this  also  encompass  additional  health  and  life  insurance 
sometimes provided by an employer? In addition, some of the ‘new’ Member States or candidate countries, 
in particular the post-communist states, had restructured their social security system in accordance with 
the so-called ‘World Bank Model’ (e.g. Bulgaria, Latvia and North Macedonia). This model does not 
follow a three-pillar structure like that used in the EU framework (i.e. statutory, occupational and private 
schemes).  Instead,  the  World  Bank  Model  follows  the  distinction  between  state  schemes,  mandatory 
savings schemes and voluntary schemes. It is less obvious how to apply the EU criteria for occupational 
schemes to the latter model. 

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6	 Statutory	schemes	of	social	security	(Directive	79/7/EEC)

Equal  treatment  of  women  and  men  in  statutory  schemes  of  social  security  was  introduced  in  1979, 
by  Social  Security  Directive  79/7/EEC.  Such  schemes  ensure  certain  benefits  for  workers.  This  refers 
to  measures  established  by  national  legislation  that  protect  workers  against  risks  such  as  sickness, 
‘invalidity’, old age, accidents at work, occupational diseases and unemployment. 

In contrast to occupational pension schemes, discussed in the previous chapter, statutory social security 
schemes  do  not  fall  under  the  concept  of  pay.  Some  litigation  has  revolved  around  the  question  of 
whether a scheme is statutory or occupational.596 This is particularly important since certain exceptions 
are allowed under Directive 79/7/EEC, but not under Article 157 TFEU or Recast Directive 2006/54/EC. The 
CJEU has often answered preliminary questions on issues of both direct and indirect sex discrimination in 
statutory social security schemes.597 

6.1	 Implementation	of	the	principle	of	equal	treatment	

Most of the transposition measures taken by the 36 countries covered in this report concerned amendments 
to the rules governing the various schemes. In many countries, social security legislation is a complicated 
matter, governed by a web of legislative provisions, and this is also true for the introduction of gender 
equality in this domain. All the relevant legislation had to be screened. Almost all national experts report 
that the principle of equal treatment for men and women in matters of social security has now been 
implemented in national legislation. 

In some countries this has not been done by specific legislation expressly transposing Directive 79/7/EEC, 
but rather through general equal treatment law or provisions in the Constitution (e.g. Belgium, Croatia, 
Denmark, France, Hungary and Spain). 

Thus,  in  Spain  there  is  no  legislation  or  single  legal  provision  expressly  stipulating  the  prohibition  of 
gender discrimination in statutory social security schemes. However, Article 14 of the Constitution, which 
generally prohibits gender discrimination, applies to social security as well. There have been a string of 
CJEU cases in respect of Spain concerning indirect sex discrimination in social security.598 Spanish law has 
mostly been amended in response to these judgments. Following Villar	Laiz, the Spanish Constitutional 
Court ruled that the partiality coefficients applied in the calculation of contributions of part-time workers 
was contrary to the Constitution because it was indirectly discriminatory on the ground of sex. However, 
the  Court  has  limited  the  application  of  its  decision,  excluding  its  retroactivity.  This  is,  in  the  opinion 
of  the  Spanish  expert,  against  the  doctrine  of  the  CJEU.  The  Constitutional  Court  has  also  limited  its 
decision to retirement pensions, although partiality coefficients are used for calculating the contributions 
of permanent disability pensions and some family pensions.

In Greece, the Constitutional prohibition of sex discrimination (Article 4(2)) also applies to social security 
in general, while there is legislation of limited scope that prohibits it in the field of Directive 79/7/EEC. In 
the Netherlands as well as Italy, there is no specific national legislation prohibiting discrimination in 
statutory social security schemes. However, nearly all forms of sex discrimination in this area have been 
eradicated in these countries. 

596  See, for example, Judgment of 28 September 1994, Bestuur van het Algemeen Burgerlijk Pensioenfonds v G. A. Beune, C-7/93, 

EU:C:1994:350.

597  See for examples of prohibited indirect sex discrimination in Austrian law the Judgment of 20 October 2011, Waltraud 

Brachner v Pensionsversicherungsanstalt, C-123/10, EU:C:2011:675 (Brachner); and Judgment of 22 November 2012, Isabel 
Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS), C-385/11, 
EU:C:2012:746.

598  Judgment of 22 November 2012, C-385/11, Isabel Elbal Moreno v Instituto Nacional de la Seguridad Social (INSS) and Tesorería 

General de la Seguridad Social (TGSS); Judgment of 9 November 2017, C-98/15, Espadas Recio v Servicio Público de Empleo 
Estatal (SPEE); Judgment of 8 May 2019, C-161/18, Violeta Villar Láiz v Instituto Nacional de la Seguridad Social (INSS) and 
Tesorería General de la Seguridad Social (TGSS).

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Statutory schemes of social security (Directive 79/7/EEC)

6.2	 Personal	scope

Article 2 of Directive 79/7/EEC lays down the personal scope of the Directive. On the basis of this provision, 
the  Directive  applies  to  ‘the  working  population  –  including  self-employed  persons,  workers  and  self-
employed  persons  whose  activity  is  interrupted  by  illness,  accident  or  involuntary  unemployment  and 
persons seeking employment – and to retired or invalided workers and self-employed persons’.

While  many  experts  report  that  the  personal  scope  of  national  law  is  the  same  as  in  the  Directive, 
several  experts  have  reported  that  the  national  law  relating  to  statutory  social  security  is  broader  in 
personal scope than the Directive (Finland, Iceland, Italy, Latvia, North Macedonia, Norway, Serbia, 
Slovenia, Sweden, Turkey). 

For example, in Latvia, the Law on Social Security applies to everyone residing in Latvia legally (with 
some exceptions concerning citizens of third countries with temporary residence permits). In Sweden, 
generally  speaking,  the  social  security  system  is  individual  and  based  on  either  residence  or  gainful 
activities, including both employment and self-employment. Many schemes – such as that on parental 
leave and pensions – include a guaranteed level covering all Swedish residents, which makes the coverage 
broader than required by Article 2. The scope is also broader in Serbia, as Article 4 of the Law on Social 
Protection stipulates that each individual or family in need of help and support to overcome their social 
and subsistence difficulties, and to create conditions in order to meet their basic needs, have the right to 
social security. 

In  the  Netherlands,  however,  the  personal  scope  of  national  law  appears  more  restricted  than  the 
personal  scope  of  the  Directive,  as  self-employed  people  are  not  always  covered  by  statutory  social 
security regimes. National law relating to statutory social security schemes covers employees and former 
employees, i.e. those who receive an invalidity pension or an unemployment benefit or a sickness benefit 
on  the  basis  of  one  of  the  social  security  laws.  In  some  cases,  self-employed  persons  are  included. 
Dutch law refers to what are termed gelijkgestelden, i.e. workers who do not qualify as a worker in the 
sense of the Civil Code (Article 7:610), but who work under similar conditions (quasi/para-subordinate 
workers). Examples of this are various types of flexi-workers or home workers. For some of these persons 
a  threshold  applies:  their  employment  relationship  must  have  lasted  for  at  least  30  days  and  their 
income must amount to at least 40 % of the minimum income as regulated by law. In addition, for some 
employment relations the possibility of being covered under the social security schemes is restricted to 
those who work for at least two days per week.599 Excluded from the scope of social security schemes are, 
among others, directors of a company who own a majority of the shares of that company and domestic 
staff who work on fewer than four days a week for the same employer. According to the Central Appeals 
Tribunal, the interpretation of ‘domestic staff’ includes not only domestic cleaners or child-minders and 
the like, but also ‘professional carers’ such as trained nurses providing medical care at home in the service 
of an individual employer.600 

6.3	 Material	scope

Article 3 of Directive 79/7/EEC lays down the material scope of the Directive. It covers sickness, ‘invalidity’, 
old age, accidents at work, occupational diseases and unemployment.

While many experts report that the material scope of national law is the same as in EU law, several experts 
have reported that national law relating to statutory social security is broader in material scope than the 
Directive  (e.g.  Albania,  Austria,  Belgium,  Finland,  Germany,  Latvia,  Liechtenstein,  Montenegro, 
Serbia). 

599  Netherlands, Articles 1 and 5 of the Decree designating cases where employment relationship is considered to be 

employment (Besluit aanwijzing gevallen waarin arbeidsverhouding als dienstbetrekking wordt beschouwd), 2008 Stb. 2008, 574.

600  Netherlands, Central Appeals Tribunal (CRvB), RSV 1996/247, 29 April 1996.

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Social  assistance  is  partially  excluded  from  the  scope  of  Directive  79/7/EEC.  Only  where  it  intends 
to  supplement  or  replace  statutory  schemes  does  the  prohibition  of  discrimination  laid  down  in  that 
directive apply (Article 3(1)(b)). For example, a family benefit for low-income families that supplements 
an unemployment benefit would fall under the scope of the directive. 

Article  3(2)  stipulates  that  the  directive  does  not  cover  family  benefits  and  survivors’  benefits.  The 
exception is when family benefits are granted by way of increases of benefits due in respect of the risks 
referred to in paragraph 1(a). Nevertheless, in almost all of the Member States and EEA countries, gender 
discrimination in these areas has been abolished, independently of EU law requirements. Cyprus is an 
exception when it comes to survivor’s benefits: a widow’s pension is payable only to a widow. A widower’s 
pension is payable only if a widower is permanently incapable of self-support. The Parliament amended 
the law, but the President of the Republic referred it to the Supreme Court for a legal opinion on whether 
the law is unconstitutional, with reference to Article 80 of the Constitution. There is currently a proposal 
to amend the law as regards widower’s pensions. 

In Italy, some groups of part-time workers (i.e. those working less than 24 hours a week and vertical part-
timers) are excluded from family allowances. In Greece, the legislation implementing Directive 79/7/EEC 
does not cover all the schemes which must be considered statutory.

6.4	 Derogations	from	material	scope	

Article 7 of Directive 79/7/EEC contains a number of derogations Member States are permitted to make 
from the principle of equal treatment. There has been a tendency to stop making use of these derogations. 
The two most important derogations relate to the treatment of periods of care and to the differences in 
pensionable age.

Derogations from equal treatment: differences in pensionable age (Article 7(1)(a))601
As far as the traditional difference in pensionable age is concerned, the overall picture of the statutory 
schemes in the Member States, the EEA and the candidate countries is as follows:

 –

 –

 –
 –

In  the  largest  group  of  states  there  is  no  difference  (anymore)  in  this  respect  between  men  and 
women (Belgium, Cyprus, Denmark, Finland, France, Germany, Greece (with the exception of a 
more favourable pensionable age for mothers with minor children or disabled children irrespective 
of their age affiliated to the general pension scheme for private sector employees), Iceland, Ireland, 
Italy  (as  of  2018),  Latvia,  Liechtenstein,  Luxembourg,  Malta,  Montenegro,  Netherlands, 
Norway, Portugal, Slovakia, Sweden, Spain).
In other states there is a process of equalising the pensionable age, sometimes with long transitional 
arrangements  (Albania,  Austria,  Bulgaria,  Croatia,  Czechia,  Estonia,  Lithuania,  North 
Macedonia  (where  women  have  the  option  to  retire  earlier  than  men,  which  is  not  obligatory), 
Serbia, Slovenia, Turkey, United Kingdom).
In Romania the difference in pensionable age is maintained. 
Hungary and Poland form a category of their own: these are countries which have recently (re)
introduced differences between men and women in this respect. In 2011 Hungary introduced more 
differences in the form of an early retirement option available only for women, and in 2016 Poland 
reinstated different pensionable ages: 60 for women and 65 for men. 

601  One may question the retention and reintroduction of different pensionable ages in some countries in the light of the 
Court’s ruling in Case C-9/91, in which it underscored the temporal element by holding that: ‘Although the preamble to 
the Directive does not state the reasons for the derogations which it lays down, it can be deduced from the nature of the 
exceptions contained in Article 7(1) of the Directive that the Community legislature intended to allow Member States to 
maintain temporarily the advantages accorded to women with respect to retirement in order to enable them progressively 
to adapt their pension systems in this respect without disrupting the complex financial equilibrium of those systems, the 
importance of which could not be ignored. Those advantages include the possibility for female workers of qualifying for a 
pension earlier than male workers, as envisaged by Article 7(1)(a) of the Directive.’ Case C-9/91, The Queen c/ Secretary of 
State for Social Security, ex parte the Equal Opportunities Commission, ECLI:EU:C:1992:297 para 15.

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Interestingly,  in  countries  that  have  maintained  or  reintroduced  a  difference  in  pensionable  age,  the 
difference is regarded as fair since it compensates for unequal working conditions for men and women. 
As we have seen in the previous chapter on occupational pension schemes, the CJEU has another opinion 
concerning  this  difference  in  pensionable  age  cases  and  such  direct  sex  discrimination  is  prohibited. 
However, in the area of statutory social security, differences in pensionable age are not prohibited. Although 
the difference has given rise to some litigation, the (male) complainants have not been successful very 
often to date. 

In Czechia, the statutory pension system applies a different pensionable age for men and women and 
it also allows only women to reduce their pensionable age if they have raised more than one child. This 
does not apply to men, even if a man has raised his children alone. The pensionable age is being gradually 
increased and will be equal for men and women in 2044, when people born in 1977 will reach retirement 
at 67. Until then, the current discrimination against men is maintained by legislation. This practice has not 
been changed following the ECtHR ruling in Andrle,602 or even following the CJEU ruling in Soukupova.603

Derogations from equal treatment: periods of care (Article 7(1)b)
Article 7(1)(b) provides that Member States can decide to exclude from the principle of equal treatment 
advantages  in  respect  of  old-age  pension  schemes  granted  to  people  who  have  brought  up  children, 
and the acquisition of benefit entitlements following periods of interruption of employment due to the 
bringing up of children. In the states under review, there is a whole array of ‘advantages’ that relate to 
the fact that women (or more often one of the parents) have been engaged in raising their children. These 
advantages can take the form of qualifying periods, i.e. periods of leave that still count for the purposes 
of  (certain  types  of)  social  security,  various  bonuses  or  notional  contributions.  Much  depends  on  the 
national scheme in question.

In France, for example, legislation granting pension credits to mothers per child had to be amended.604 
However, female civil servants still enjoy an increased insurance coverage for pensions linked to maternity 
if there is an agreement between the father and the mother. If the parents do not agree, the advantage 
will be granted to the parent who can prove that they have contributed more and for a longer period to 
the upbringing of the child. 

Another example is Italy, where advantages as regards old-age pensions for the purpose of child-rearing 
are provided for the benefit of women. More favourable coefficients of transformation (according to which 
pensions are calculated) are fixed for maternity. Then, again in relation to maternity, a reduction in the age 
of retirement of four months per child is granted, with a maximum limit of 12 months. As an alternative 
to this, it is also provided that women with children are able to receive a retirement pension subject to 
reduced conditions.

In  Albania,  an  early  retirement  option  existed  until  31  December  2014  for  women  with  six  or  more 
children.

In Spain, Article 60 of the General Law of Social Security stipulates a pension supplement exclusively 
applicable to mothers of at least two children, although a Royal Decree has recently changed this rule. 
The supplement also applies to the mothers of adopted children. No equivalent measure is available to 
fathers who were responsible for taking care of their children. The supplement is an increase of between 
5 % and 15 % of the pension and may exceed the maximum pension established in the social security 
system. The supplement is established to compensate for the losses in their professional careers suffered 
by women as a result of caring for their children. The Spanish legal expert notes that the exclusion of 

602  ECtHR, Andrle v Czechia, No. 6268/08, 17 February 2011. 
603  CJEU, Judgment of 23 October 2012, Blanka Soukupová v Ministerstvo zemědělství, C-401/11, EU:C:2012:658.
604  See also Judgment of 13 December 2001, Henri Mouflin v Recteur de l’académie de Reims, C-206/00, EU:C:2001:695; and more 
recently Judgment of 17 July 2014, Maurice Leone and Blandine Leone v Garde des Sceaux, ministre de la Justice and Caisse 
nationale de retraite des agents des collectivités locales, C173/13, EU:C:2014:2090.

157

fathers from this benefit is problematic, as these losses can also occur for men who spend time caring 
for their children.

In Slovakia, while previously there was a difference between men and women, from 1 January 2021 
the retirement age is adjusted so that every insured person who has raised children has their retirement 
age reduced by six months for each child they brought up, compared to the retirement age of a childless 
insured person who was born in the same calendar year.

6.5	 Sex	as	an	actuarial	factor

Unlike Recast Directive 2006/54/EC dealing with occupational social security schemes (see Section 5.6), 
Directive 79/7/EEC does not mention the use of gender-related actuarial factors. The list of derogations 
under Article 7(1) is exhaustive, and the use of gender-based actuarial factors in the calculation of social 
security benefits is not included. The first time the CJEU ruled on the legality of the use of sex-based 
actuarial  factors  in  the  calculation  of  social  benefits,  was  Case  C-318/13  (X).  The  Court  delivered  a 
judgment following a dispute between X and the Finnish Ministry of Social Affairs and Health concerning 
the  grant  of  a  lump-sum  compensation  paid  following  an  accident  at  work.605  The  calculation  of  that 
lump sum was based on the age of the worker and his remaining average life expectancy. In order to 
determine  this,  the  worker’s  sex  was  taken  into  account.  X,  a  man,  then  complained  that  he  received 
less compensation than a woman of the same age would have received in a comparable situation. The 
CJEU ruled that the difference in calculation constituted a form of unequal treatment, which cannot be 
justified.606 

In most countries, sex is not used as an actuarial factor in the calculation of social security benefits. The 
exceptions are Belgium, Bulgaria and Germany. In Bulgaria, at the end of 2017, under Act No. 92/2017, 
the  use  of  sex  as  an  actuarial  factor  in  additional  life  pension  for  old  age  considered  as  part  of  the 
statutory pension system was declared inadmissible. Implementation of the act is yet to be monitored.

In Finland, following the CJEU’s judgment in X, the Supreme Administrative Court found that the use of 
sex-segregated life expectancy in calculating lump-sum compensation under the Employment Accidents 
Act  breached  EU  law,  and  that  X  had  suffered  a  loss  due  to  the  Act.607  The  Employment  Accidents 
Act (608/1948) was replaced by the Act on Employment Accidents and Occupational Diseases (459/2015), 
which came into force on 1 January 2015. The new Act does not contain any provisions using sex as an 
actuarial factor.

Belgian legislation concerning accidents at work is similar to that in Finland, except that only one third 
of the total value of the life-long compensation benefit may be paid as a lump-sum amount; gender-
segregated  mortality  tables  are  used  in  order  to  calculate  this  value.  After  the  European  Commission 
requested all Member States to screen their statutory security schemes in the light of case C-318/13, a 
Royal Decree amended a previous decree in order to impose the use of gender-neutral actuarial factors 
for lump sums to be paid as of 1 January 2016.

In Bulgaria, until almost the end of 2017, when the legislation608 was amended, actuarial factors based 
on sex were still used in the calculation of social security benefits in the area of supplementary mandatory 
social insurance for people born after 31 December 1959. This practice implemented by private insurance 
companies was systematically challenged and brought before the Supreme Administrative Court between 

605  CJEU, Judgment of 3 September 2014, X, C-318/13, EU:C:2014:2133.
606  The Court reasoned that: ‘Such a generalisation is likely to lead to discriminatory treatment of male insured persons as 

compared to female insured persons. Among other things, when account is taken of general statistical data, according to 
sex, there is a lack of certainty that a female insured person always has a greater life expectancy than a male insured person 
of the same age placed in a comparable situation.’ (Finding 38).

607  Finland, Supreme Administrative Court, KHO:2015:8.
608  Act amending the Social Security Code (ZID KSO) (published in State Gazette No 92 of 17 November 2017).

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Statutory schemes of social security (Directive 79/7/EEC)

2011 and 2013 by a group of Bulgarian women born after December 1959. Their complaints were all 
rejected. 

In Germany, sex-based actuarial factors are not generally used. Concerning pensions for civil servants, 
however, the administration uses gender-specific mortality tables to identify the average life expectancy 
of men and women and calculates (among other criteria) on this basis. The Federal Administrative Court 
doubts that this method of ‘pure statistical gender equality’ is compatible with the EU law principle of 
equal pay and has expressed its interest in a clarifying decision from the CJEU.609

6.6	 Difficulties

As regards difficulties with the implementation of Directive 79/7/EEC, some countries face the problem 
mentioned  in  Chapter  5.7  above:  that  their  security  schemes  are  not  comparable  to  either  statutory 
social security schemes or occupational social security schemes (e.g. Bulgaria and Romania). The Greek 
expert  reports  that  there  is  limited  awareness  of  the  distinction  between  statutory  and  occupational 
social security schemes among various stakeholders.

Structural  difficulties  with  statutory  social  security  persist  in  many  countries,  often  due  to  apparently 
gender-neutral rules which in effect disadvantage women (indirect discrimination). The main problems 
are related to:

 –

 –

 –

 –

 –

 –

The differences between full-time and part-time workers (e.g. Italy and Spain). Groups of part-time 
workers – often women – who work for just a few hours per week are especially precarious (e.g. 
Germany and the Netherlands). 
Childcare leave and the discontinuity in many women’s working lives (e.g. Spain). The experts from 
Italy and Latvia report inequalities in the calculation of particular benefits, due to women taking 
childcare leave and thereby interrupting their contributions to social security schemes. In Latvia, 
during  childcare  leave,  parents  are  insured  by  the  state  instead  of  insuring  themselves,  but  at  a 
minimum  amount.  Consequently,  being  on  childcare  leave  negatively  affects  the  amount  of  their 
old-age pensions. 
Job  segregation  (where  women  are  overrepresented  in  low-income  sectors  (e.g.  Spain))  and  the 
salary pay gap (e.g. Portugal).
Required length of contributions: the expert from Italy notes in this regard that the latest legislation 
on pensions is far from female-friendly. Act No. 214/2011 provides for an increase of the minimum 
contribution condition from five to 20 years: if the claimant has less than 20 years’ contributions, the 
pension will be paid from the age of 70. 
The  economic  thresholds  to  access  benefits  (e.g.  Italy)  and  the  formulas  used  to  calculate  the 
amount for old-age and disability pensions (e.g. Portugal).
Health insurance: in Croatia, there are gender equality issues with the statutory health insurance. An 
example of the less favourable position of women in statutory health insurance in practice includes 
lower salary compensation for sickness when a woman takes sick leave (e.g. to take care of a sick 
child) in the six months after her return from parental leave.

The  Turkish  expert  also  mentions  many  shortcomings  in  the  Turkish  laws  on  social  security  from  a 
gender  equality  perspective.  The  social  security  system  in  Turkey  is  established  typically  on  the  basis 
of working life and premium payments and also mainly takes the male employee as the person to be 
protected. For women to become beneficiaries of social security, they have to work in an insured job in the 
formal sector; otherwise, they have to be dependent on a man. In short, when it comes to social security, 

609  Germany, Federal Administrative Court, judgment of 5 September 2013, 2 C 47/11. 

159

according to the expert, women in Turkey are defined not as individuals, but within the framework of 
family and matrimony.610 

Despite these structural problems, the Spanish expert reports that the issue of gender is hardly included 
in ongoing debates about the reform of the social security system, and the same likely applies in other 
countries.

In Luxembourg, a more singular issue has been raised: the High Council of Social Security questioned the 
compatibility of Article 196 paragraph 2(c) of the Social Security Code with Article 10a paragraph 1 of 
the Constitution. The background history to Article 196 is that when it was introduced, it was considered 
that young women could enter into marriages with older men with the sole objective of being entitled, 
without paying pension contributions, to a survivor’s pension rights for the remainder of their lives. In 
order to prevent such an excessive burden on the finances of the old-age pension scheme, a limit of 15 
years in the age difference between spouses was introduced. This provision was never repealed. While 
the Superior Court did not find indirect discrimination on grounds of sex, it found discrimination between 
spouses or partners with an age difference of greater than 15 years and those with an age difference of 
less than 15 years. However, the Constitutional Court did not consider the provision to be contrary to the 
Constitution, arguing that it seemed reasonably proportionate to the aim pursued.611

In Serbia, a decision by the Constitutional Court is pending regarding the constitutionality of a difference 
in age for survivors’ pensions – the qualifying age being 53 for widows and 58 for widowers.

610  Turkey, Bakirci, K. (2021) Turkey – Country report gender equality, European Commission, available at: https://www.

equalitylaw.eu/downloads/5415-turkey-country-report-gender-equality-2021-2-17-mb, p. 88.

611  Luxembourg, Constitutional Court, Case Law No. 129 of 7 July 2017. Memorial A No. 638 of 14 July 2017. available at:  

http://data.legilux.public.lu/file/eli-etat-leg-memorial-2017-638-fr-pdf.pdf.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 20217	

	Self-employed	workers	(Directive	2010/41/EU	and	some 	
relevant provisions of the Recast Directive)

Protection from sex discrimination against self-employed workers, their spouses, and insofar as recognised 
by national law, life partners, who are not employees or partners, is a complex area. The number of self-
employed workers has been increasing in Europe and they experienced severe consequences as a result 
of  the  recent  economic  downturn.  The  relatively  weak  provisions  of  Directive  86/613/EEC  have  been 
modernised and replaced by the stronger provisions of Directive 2010/41/EU, which repeals the former 
Directive. But even so, lacunas remain in the protection of self-employed workers in EU law. 

Directive  2010/41/EU  requires  that  the  Member  States  take  the  necessary  measures  to  ensure  the 
elimination of all provisions which are contrary to the principle of equal treatment, for instance in relation 
to the establishment, equipment or extension of a business or the launching or extension of any other 
form of self-employed activity (Article 4(1)). Direct and indirect discrimination, harassment and sexual 
harassment  and  instruction  to  discriminate  are  prohibited.  The  Directive  does  not  extend  the  social 
protection  of  the  self-employed,  but  where  a  system  for  social  protection  for  self-employed  workers 
exists in a Member State, that state must take the necessary measures to ensure that spouses and life 
partners can benefit from social protection in accordance with national law (Article 7). The Member States 
must take the necessary measures to ensure that female self-employed workers, and female spouses and 
life partners may, in accordance with national law, be granted a sufficient maternity allowance allowing 
interruptions in their occupational activity owing to pregnancy or motherhood for at least 14 weeks (on a 
mandatory or voluntary basis). Measures must also be taken to ensure access to temporary replacements 
or  social  services  (Article  8).  It  is  worth  mentioning  that  equality  bodies  should,  among  other  things, 
provide independent assistance to victims of discrimination, conduct independent surveys etc. (Article 11).

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

7.1	 Implementation	of	Directive	2010/41/EU

In 2015 the European network of legal experts in the field of gender equality published a report on the 
implementation of Directive 2010/41/EU.612

In  several  states  no  specific  law  implementing  Directive  2010/41/EU  has  been  adopted  (e.g.  Albania, 
Belgium, France, Liechtenstein, Spain). In several other states existing laws were amended to include 
provisions  related  to  the  self-employed  (Austria,  Bulgaria,  Croatia,  Cyprus,  Estonia,  Hungary). 
In  some  countries  general  equal  treatment  legislation  applies  (Austria,  Denmark,  Finland,  Iceland, 
Italy, Germany, Netherlands, Norway, United Kingdom). Greece has enacted a law to specifically 
implement the directive,613 but not all of the directive’s provisions were transposed.

612  Barnard, C. and Blackham, A. (2015), Self-employed: The implementation of Directive 2010/41 on the application of the principle of 
equal treatment between men and women engaged in an activity in a self-employed capacity, European Commission, available at: 
http://www.equalitylaw.eu/index.php?option=com_edocman&task=document.viewdoc&id=2732&Itemid=295.

613  Greece, Act 4097/2012 (ΟJ A 235/03.12.2012).

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7.2	 Personal	scope

7.2.1	 Scope	and	definitions

Article 2 of Directive 2010/41/EU lays down the personal scope of the directive. It stipulates that the 
directive  covers  self-employed  workers  and  their  spouses  or  life  partners.  Self-employed  workers  are 
defined as ‘all persons pursuing a gainful activity for their own account, under the conditions laid down 
by national law’. This leave considerable room for national law to define who might be considered a self-
employed worker. The question of who a self-employed worker is according to national law is difficult, 
however.614 The definition of self-employment is often not clear at national level. Catherine Barnard and 
Alysia Blackham have provided a categorisation of different types of definitions.615 

Whereas some countries have copied the definition of the Directive (e.g. Greece), in several states ‘self-
employed person’ or ‘self-employment’ is not defined at all in national legislation (Bulgaria, Denmark, 
Finland, France, Italy, Ireland, Montenegro, Netherlands, Poland, Sweden). In France, the criteria 
for self-employment are developed on the basis of cases from the Cour	de	Cassation (the French Supreme 
Court).  According  to  the  case  law,  a  self-employed  person  can  be  defined  as  a  person  who  provides 
services to another party in an independent and non-subordinate manner.616 In Austria, self-employed 
is defined by law – but not comprehensively, and slightly varying according to subject matter (tax law, 
employment law, trade law, etc.).

7.2.2	 Different	categories	of	self-employed

The  Directive  does  not  distinguish  between  different  types  of  self-employed  workers.  Some  countries, 
however, do differentiate between categories of self-employed workers (e.g. Albania, Croatia (where the 
differentiation exists only for tax purposes, not for social security legislation), Germany, Iceland, North 
Macedonia, Romania, Spain and Turkey). In some of these countries not all self-employed workers 
enjoy the same rights. In Iceland, for example, not all self-employed workers are considered to be part 
of the same category with regard to unemployment. There is a special unemployment fund for benefit 
payments to farmers, small fishing-vessel owners and lorry drivers.617 Other self-employed individuals, 
just like wage earners, are entitled to apply to the Directorate of Labour for unemployment benefits when 
becoming unemployed. 

In  Austria,  Romania  and  Turkey,  agricultural  workers  also  form  a  separate  category.  In  Germany, 
there are hundreds of professions in the field of self-employment and many of them are organised in 
associations with the right of self-regulation and their own social security systems, especially professional 
pension funds. Thus, self-employed workers are covered by various and very different federal and state 
laws, as well as professional regulations. In Spain, there are two kinds of self-employed workers: the 
ordinary ones (who are called autónomos), and the economically dependent self-employed workers (who 
are called trabajadores	autónomos	económicamente	dependientes or TRADE).

7.2.3	 Recognition	of	life	partners

As to the recognition of spouses and life partners of self-employed people, the picture at the national 
level  is  diverse.  The  experts  from  Bulgaria,  Cyprus,  Czechia,  Denmark,  Estonia,  Hungary,  Italy, 
Latvia,  Lithuania,  Montenegro,  North  Macedonia,  Norway,  Poland,  Romania,  Serbia,  Slovakia 

614  Barnard, C., Blackham, A. (2015) ‘Self-employment in EU Member States: the role for equality law’, European equality law 

review 2015/2, pp. 7-10. 

615  Barnard, C., Blackham, A. (2015) ‘Self-employment in EU Member States: the role for equality law’, European equality law 

review 2015/2, pp. 7-10.

616  For instance see, Court of Cassation, Social Chamber, 13 November 1996, Dr. Soc. 1996. 1067.
617 

Iceland, Article 7 of the Unemployment Insurance Act No. 54/2006.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Self-employed workers (Directive 2010/41/EU and some relevant provisions of the Recast Directive)

and Turkey report that national law does not recognise life partners or only to a minor extent. In Greece 
they are recognised: social security rights were granted in 2016, but only to life partnership agreements 
that were entered into after 23 December 2015. People who entered into a life partnership agreement 
before 23 December 2015 have the right, if they so wish, to acquire such rights by means of a notarial 
deed. However, life partners have not yet been granted rights related to employment. 

7.3	 Material	scope

Article 4 of Directive 2010/41/EU lays down the material scope of the directive. It provides that, ‘there 
shall be no discrimination whatsoever on grounds of sex in the public or private sectors, either directly 
or indirectly, for instance in relation to the establishment, equipment or extension of a business or the 
launching or extension of any other form of self-employed activity’ (Article 4(1)). Harassment and sexual 
harassment and an instruction to discriminate are also prohibited.

Many experts report that the material scope of national law is the same as in the Directive (e.g. Austria, 
Cyprus, Estonia, Greece, Slovakia, Spain, Sweden). The expert from Albania reports that legislation 
there is broader than the directive.

7.4	 Positive	action

Article 5 of Directive 2010/41/EU gives Member States the possibility of taking positive action (within the 
meaning of Article 157(4) TFEU) with a view to ensuring full equality in practice between men and women 
in working life, for instance aimed at promoting entrepreneurial initiatives among women. 

The majority of states have not made use of this power in the context of self-employment (Austria, 
Belgium,  Bulgaria,  Cyprus,  Czechia,  Denmark,  Finland,  Greece,  Hungary,  Ireland,  Latvia, 
Liechtenstein,  Lithuania,  Malta,  Netherlands,  Norway,  Poland,  Romania,  Slovakia,  Slovenia, 
Sweden, United Kingdom).

Where positive action has been taken, this has been related to providing financial incentives and subsidies 
for female entrepreneurs (Albania, Croatia, Spain, Turkey); preferential treatment for loans for female 
entrepreneurs to set up or develop a business (Estonia (although this is solely project-based, a national 
support scheme does not exist), France, Germany, Italy, Poland, Sweden, Turkey); providing training 
(Croatia, Estonia, Italy, North Macedonia, Turkey) and advice services (Spain); tax relief or exemptions 
(Poland) and social security contribution reductions (Spain); support, mentoring, counselling and other 
activities to encourage women’s self-employment (Germany, North Macedonia, Serbia); and financial 
support for independent women’s networks (Luxembourg).618

Despite these actions and programmes, gender inequality persists in this sphere. The Serbian expert, 
for  example,  explained  that  women  face  more  unfavourable  conditions  for  the  development  of  their 
enterprises than men due to their position in the labour market, the gender gap in property ownership, 
greater involvement of women in the home, and the still strong gender stereotypes which cause a lack 
of confidence among women and influence their willingness to initiate their own business venture. The 
main problems in Serbia are: difficulties in obtaining funds from financial institutions and lack of initial 
capital, disadvantageous traditional lending models and non-creditworthiness, the property usually being 
registered in the husband’s name, the lack of microfinance institutions, and the lack of knowledge and 
skills for entrepreneurship.619 

618  Barnard, C. and Blackham, A. (2015), Self-employed: The implementation of Directive 2010/41 on the application of the principle 
of equal treatment between men and women engaged in an activity in a self-employed capacity, available at: http://www.
equalitylaw.eu/index.php?option=com_edocman&task=document.viewdoc&id=2732&Itemid=295, pp. 19-20.

619  The National Strategy for the Improvement of the Position of Women and Promotion of Gender Equality, Official Gazette of 

the Republic of Serbia, No. 15/2009.

163

7.5	 Social	protection

Article 7 of Directive 2010/41/EU provides that ‘[w]here a system for social protection for self-employed 
workers exists in a Member State, that Member State shall take the necessary measures to ensure that 
spouses  and  life  partners  can  benefit  from  a  social  protection  in  accordance  with  national  law.’  The 
Member States may decide whether the social protection is implemented on a mandatory or a voluntary 
basis.

All  countries  have  a  system  of  social  protection  in  place  for  self-employed  workers.  These  systems 
vary considerably, however. In some countries, self-employed workers are covered in the same way as 
employees (e.g. Croatia, Montenegro, Slovenia). Often there is a combination of mandatory (e.g. covering 
pensions and health insurance) and voluntary (e.g. covering sickness insurance) schemes in place. In the 
Netherlands, for example, self-employed people are covered by the national insurance schemes, which 
provide for basic welfare benefits, by the Surviving Dependants Act and, from pensionable age (65 years 
and three months in 2015), by the General Old-Age Pensions Act. They cannot, however, automatically 
rely on employment-related insurance schemes, such as unemployment and disability benefits. Instead, 
they can choose to join these insurance schemes voluntarily (but will only benefit if they meet certain 
criteria, such as having paid contributions for at least three years); take out (generally more costly) private 
insurance; or remain uninsured. Furthermore, they do not (yet) have access to a supplementary collective 
pension scheme. 

The  2015  report  on  the  implementation  of  the  directive,  by  Barnard  and  Blackham,  notes  that  social 
protection for spouses (and sometimes life partners) is mandatory in most countries (Austria, Belgium, 
Croatia, Cyprus (not life partners), Czechia, Denmark, Finland, France (not spouses and life partners 
in  the  liberal  professions),  Germany,  Iceland,  Ireland,  Italy,  Liechtenstein,  Luxembourg,  North 
Macedonia (not life partners), Norway, Poland, Portugal, Spain, Sweden, Turkey (not life partners).620 
Voluntary  systems  exist  in  Bulgaria,  Estonia,  Lithuania  (not  life  partners),  Luxembourg  (voluntary 
if  not  in  agriculture),  Romania,  Slovakia,  Slovenia  and  the  United  Kingdom  (though  with  some 
residence-based entitlements).621 

7.6	 Maternity	benefits

Article  8  of  Directive  2010/41/EU  regards  maternity  benefits  for  female  self-employed  workers  and 
female spouses and life partners of self-employed workers. Paragraph 1 states that: 

‘The  Member  States  shall  take  the  necessary  measures  to  ensure  that  female  self-employed 
workers and female spouses and life partners... may, in accordance with national law, be granted 
a  sufficient  maternity  allowance  enabling  interruptions  in  their  occupational  activity  owing  to 
pregnancy or motherhood for at least 14 weeks.’

Barnard and Blackham reported that few countries have amended their law to comply with this article.622 
Several national experts have reported problems with the implementation of the provision either formally 

620  See Barnard, C. and Blackham, A. (2015), Self-employed: The implementation of Directive 2010/41 on the application 
of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, 
European Commission, available at: http://www.equalitylaw.eu/index.php?option=com_edocman&task=document.
viewdoc&id=2732&Itemid=295, p. 22.

621  See Barnard C. and Blackham, A. (2015), Self-employed: The implementation of Directive 2010/41 on the application 
of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, 
European Commission, available at: http://www.equalitylaw.eu/index.php?option=com_edocman&task=document.
viewdoc&id=2732&Itemid=295, p. 22.

622  See Barnard, C. and Blackham, A. (2015), Self-Employed: The implementation of Directive 2010/41 on the application 
of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity, 
European Commission, available at: http://www.equalitylaw.eu/index.php?option=com_edocman&task=document.
viewdoc&id=2732&Itemid=295, p. 23.

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or in practice (e.g. Germany, Greece, Latvia, Lithuania, North Macedonia). In 2020, Denmark adopted 
a  legislative  proposal  to  improve  maternity/parental  leave  for  self-employed  workers.  In  Greece,  only 
self-employed women – not spouses or life partners – may be granted maternity allowance. Moreover, 
maternity benefits for the self-employed have been fixed at a sum that is far below the poverty threshold. 
In Germany, only self-employed artists, publicists and women helping family members in the agricultural 
sector  are  entitled  to  maternity  allowances  under  special  regulations.  In  Lithuania,  spouses  of  self-
employed workers are not covered by the regulation on maternity allowances, while life partners are not 
recognised at all. The same is true for North Macedonia. 

The expert from Spain provides an illustration of how maternity leave for self-employed women works 
in practice: as self-employed women usually declare a lower than real income, the maternity allowance 
hardly serves to replace the loss of their previous income. In fact, self-employed women tend to go back 
to  work  immediately  after  the  compulsory  six  weeks  after  birth,  foregoing  the  rest  of  their  maternity 
leave. In Spain, there are no services supplying temporary replacements or other kinds of social services, 
other than the reductions in the social security contribution if the self-employed woman hires someone 
to replace her during her maternity leave or during the time devoted to the care of children.

7.7	 Occupational	social	security

7.7.1	 Implementation	of	provisions	regarding	occupational	social	security

Article 10 of Recast Directive 2006/54/EC stipulates that ‘Member States shall take the necessary steps 
to ensure that the provisions of occupational social security schemes for self-employed persons contrary 
to the principle of equal treatment are revised with effect from 1 January 1993 at the latest’. 

As regards the question of whether national law has implemented the provisions regarding occupational 
social  security  for  self-employed  workers,  the  picture  is  again  diverse.  The  experts  report  that  this  is 
not the case in Estonia, France (although the principle of equality does apply), Germany, Latvia (not 
explicitly),  Lithuania,  Montenegro  (occupational  social  security  not  recognised),  North  Macedonia, 
Serbia (occupational social security not recognised), Spain, Sweden, Turkey and the United Kingdom. 
In several of these countries, the view was taken that no implementation was required (e.g. the United 
Kingdom). In Greece, Article 10 has been reproduced in the Act transposing the Directive, but without 
any clarification as to which Greek schemes are occupational.

7.7.2	 Exceptions	for	self-employed	workers	regarding	matters	of	occupational	social	security

Article 11 of Recast Directive 2006/54/EC provides for exceptions for self-employed workers regarding 
matters of occupational social security. In certain circumstances, Member States may defer compulsory 
application of the principle of equal treatment. Such exceptions only appear to apply in Greece, Ireland 
and Portugal. In Ireland, single member schemes are excluded from the Pensions Acts. In Portugal, 
Article 5 of DecreeLaw No. 307/97, of 11 November 1997 (which deals with gender equality in occupational 
social security) uses the exceptions for self-employed workers regarding matters of occupational social 
security. In Greece, the national expert reports that the relevant article of the Act transposing the Directive 
is not clear.623

7.8	 Prohibition	of	discrimination	in	the	access	to	self-employment

Article  14(1)  of  Recast  Directive  2006/54/EC  provides  that  there  shall  be  no  direct  or  indirect  sex 
discrimination in relation to ‘conditions for access to employment, to self-employment or to occupation, 
including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of 

623  Greece, Article 8(3) of Act 3896/2010.

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the professional hierarchy, including promotion’. This prohibition of discrimination has been implemented 
in all countries, albeit not everywhere explicitly specifically for self-employed workers. The exceptions 
are Lithuania, North Macedonia and Serbia. 

In Germany, the prohibition of gender-based discrimination against self-employed workers is restricted 
to access to self-employed activities and promotion. It is contested whether self-employed people may 
invoke Section 19 of the General Equal Treatment Act (transposing requirements of Directive 2004/113/EC)  
against discrimination concerning working conditions or the discriminatory termination of self-employment 
contracts.624 The courts have not yet confirmed this possibility. In Sweden, as regards the self-employed 
there is no prohibition applicable to discrimination as regards the choice of a business partner. Nor does 
legislation cover the termination of contractual relationships with a self-employed person. 

624  See Thüsing, G. (2007), Arbeitsrechtlicher Diskriminierungsschutz, para. 94, Munich. 

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In conformity with Directive 2004/113/EC, all EU Member States have proceeded to prohibit in their laws 
direct and indirect discrimination on grounds of sex in the access to and supply of goods and services, 
also  including  non-EU  Member  States  Iceland,  Liechtenstein,  Montenegro,  North  Macedonia  and 
Norway. In Turkey, the new Article 5 of the Act on the Human Rights and Equality Institution transposes 
this directive as well. In Serbia the prohibition concerns only the provision of services and not goods. 

(i)	

Scope	of	domestic	laws

According to Article 3(1) of the Directive, it ‘shall apply to all persons who provide goods and services, 
which are available to the public irrespective of the person concerned as regards both the public and 
private sectors, including public bodies, and which are offered outside the area of private and family life 
and  the  transactions  carried  out  in  this  context’.  Yet  there  are  quite  some  differences  between  states 
when it comes to the material scope of their national laws, depending in particular on whether they have 
used the exclusion of Article 3(3): 

‘This Directive shall not apply to the content of media and advertising nor to education.’ 

While  quite  some  countries  have  used  the  above  exclusions  (Austria,  Cyprus,  Estonia,  Finland, 
Germany,  Greece,  Italy,  Liechtenstein,  Poland,  Portugal,  Romania),  in  yet  more  countries  the 
material scope is actually broader than required by the Directive because it also applies to the content of 
media, advertising and education (Belgium, Bulgaria, Croatia, Denmark, Estonia, Hungary (housing 
and education), Iceland, Latvia, Lithuania, Luxembourg, North Macedonia, Norway, Malta, Serbia, 
Slovakia, Slovenia, Spain, United Kingdom). However, in Slovene law the terms goods and services 
are not defined.

In Denmark, the Act on Gender Equality applies to all areas of society, encompassing media content, 
advertising and education. The scope of Maltese law and also the law of North Macedonia are framed 
very widely, the latter referring to bodies of the legislative, executive and judicial authorities, local self-
government bodies and other bodies in the public and private sectors, public enterprises, political parties, 
mass media and the civil sector, and all the entities providing goods and services available to the public, 
offered  outside  the  area  of  private  and  family  life.  United  Kingdom  law  covers  ‘facilities’  as  well  as 
goods and services and does not require that services are of a nature which would generally be paid 
for. Spanish law contains two specific provisions that offer protection to pregnant women and women 
on maternity leave: costs related to pregnancy and childbirth do not justify differences in premiums and 
benefits for individual people and, in the access to goods and services, it is not allowed to inquire about 
the pregnancy of a woman, except for health protection. 

Serbian  law  provides  for  a  duty  of  social  and  healthcare  institutions  and  other  institutions  dealing 
with the protection of women and children to adjust their work organisation and working hours to the 
requirements  of  their  clients.  Two  cases  were  decided  by  the  Swedish  Equality  Ombudsman,  both 
concerning harassment of women by a taxi driver and a bus driver respectively. The two women were 
awarded compensation of EUR 6 300 and EUR 3 150 respectively. Ireland has reported a case that did 
not lead to a finding of discrimination: the denial of return passage by an airline to a pregnant woman 
was not considered to be based on the pregnancy, but on the stage of pregnancy and the risk this posed 
to safety. 

Some countries have taken something of an in-between position in this regard. The Netherlands, for 
instance,  only  allows  exceptions  regarding  education,  so  as  to  give  institutions  for  special  education 
some room to follow their own beliefs. Likewise, in France the law allows for the organisation of single-
sex schools (both public and private) schools. Ireland has used the exceptions of both education and 

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advertising,  whereas  Turkey  has  availed  itself  of  the  exceptions  of  advertising  and  media  but  not 
education.  In  Sweden  the  situation  is  different  again:  media  and  advertising  are  not  covered  by  the 
non-discrimination principle, whereas education is. In Norway, the non-discrimination principle extends 
to both education and advertising, and there have indeed been some instances of sex discrimination in 
advertisements, regulated by Article 2 of the Marketing Control Act. 

In some countries, the precise material scope is unclear because the legislation simply guarantees equal 
access to goods and services without any further specification (Czechia, Montenegro). The Romanian 
Goods and Services Law was adopted to transpose the Directive and incorporated its scope and permitted 
exclusions, yet such legal limitations are inconsistent with the rest of Romanian legislation that was 
already in place and which exceeds the Directive requirements. Such legislation does not allow for any 
exceptions,  e.g.  regarding  real  estate  contracts,  bank  loans  and  any  other  type  of  contract,  and  also 
applies to services in the field of education and media and advertising. Moreover, the 2015 amendment 
of the Gender Equality Law introduced the explicit obligation that advertising agencies refrain from using 
gender stereotypes in their productions. In practice, the National Council for Combating Discrimination 
applies the Anti-discrimination Law to cases where, for example, discriminatory advertising is concerned. 

According to Bulgarian statutory law the non-discrimination principle only extends to education, but on 
the basis of case law also includes media and advertising. The scope of the Lithuanian implementing 
law does not clarify whether access to goods and services is fully covered, as on the one hand it defines 
‘different opportunities’ for selecting goods and services as a violation of the equal treatment principle 
that  can  trigger  an  administrative  penalty,  but  on  the  other  it  does  not  prohibit  situations  where  the 
refusal to supply goods or provide services is based on the consumer’s sex. Furthermore, the consumer is 
always perceived as a physical person only. The supply of goods or the provision of services can be denied 
to legal persons who are represented by natural persons of a certain sex. 

Importantly, in some countries the material scope is more restricted. German law is confined to contracts 
concluded under civil law and also provides for certain exceptions, such as the application to so-called 
‘mass  contracts’  only.  Furthermore,  the  prohibition  of  sexual  harassment  is  confined  to  the  area  of 
employment.  Latvian  law  does  not  cover  goods  and  services  which  are  publicly  offered  by  natural 
persons  outside  commercial  activities,  for  example,  if  a  natural  person  publicly  advertises  the  sale  of 
their own apartment.625 Non-profit associations are not covered either because they are precluded from 
providing any goods and services in return for payment, consequently their activities are not considered 
as commercial. 

In Estonia, the law mainly refers to nationality, race and colour as grounds prohibiting discrimination 
in  the  access  to  goods  and  services  and  it  allows  for  some  exceptions  and  differences  in  treatment 
of  people  due  to  their  sex.  Thus,  the  scope  of  the  Estonian  legislation  is  more  restricted  than  that  of 
Directive  2004/113.  It  does  not  prohibit  discrimination  on  grounds  of  religion  or  other  beliefs,  age, 
disability or sexual orientation in access to the services and supply of goods that are available to the 
public,  including  housing.  Moreover,  gender  reassignment  as  a  specific  ground  of  discrimination  is  not 
protected under Estonian legislation. The applicable Irish Equal Status Act cannot be used to challenge 
legislative  provisions  that  may  be  discriminatory  under  Directive  2004/113/EC.  The  best  approach  to 
resolve such an issue is to seek a judicial review of the relevant decision and to plead that the decision 
is in breach of the directive.

625  Note that in reaction to an infringement procedure opened by the European Commission against Latvia, in December 

2021 the Latvian Parliament amended the law and now non-discrimination is applicable in transactions between private 
individuals in case of public offer. 

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(ii)	

Possibility	of	justifications

Article  4(5)  of  Directive  2004/113/EC  stipulates  that  ‘[t]his  Directive  shall  not  preclude  differences  in 
treatment, if the provision of the goods and services exclusively or primarily to members of one sex is 
justified  by  a  legitimate  aim  and  the  means  of  achieving  that  aim  are  appropriate  and  necessary’.  In 
some countries, the law does not (explicitly) provide for any such possibility of justification of differences 
in treatment in the provision of goods and services (Montenegro, North Macedonia, Portugal, Serbia), 
but most domestic laws do (Austria, Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, 
France,  Germany,  Greece,  Hungary,  Italy,  Latvia,  Liechtenstein,  Luxembourg,  Malta,  Poland, 
Slovenia, Spain, Turkey, United Kingdom). However, application of this rule and case law have been 
very scarce so far. 

In the Netherlands, such justifications include sanitary facilities, changing rooms, dormitories and saunas, 
beauty and sports contests, and the protection from or fight against sexual violence and harassment, 
and aid for victims thereof. Such sex-segregated services aimed at protection must be necessary and 
proportionate. German law allows differential treatment if there is an objective reason for this, examples 
of  this  being  the  prevention  of  danger  or  harm  to  others  or  the  need  to  protect  privacy  or  personal 
security. However, the requirement of proportionality does not exist in the respective German legislation. 
In Belgium, while the federal Gender Act allows for justifications, these have not been further stipulated 
in  an  ancillary  Royal  Decree.  But  as  certain  aspects  of  the  notion  of  ‘goods  and  services’  fall  within 
the respective jurisdictions of the federal authorities and statutes, courts may in fact assess proposed 
justifications  for  differences  in  treatment,  a  case  in  point  concerning  the  access  to  a  fitness  facility 
reserved for women. This was considered justified because of the morphological differences between men 
and women and the protection of privacy. In Denmark, the Equality Board has ruled that the principle 
of equal treatment in access to goods and services does not always require the provision of facilities for 
men and women on a common basis, as long as the facilities are not provided on more favourable terms 
to members of one sex.

The Finnish Equality Ombudsman has considered that offers to one sex only are justified if their monetary 
value is small and when special offers are made for the annual mother’s or father’s day celebrations. 
Some  public  baths  and  swimming  pools  offer  some  hours  for  men  and  women  separately,  and  public 
saunas are offered for men and women separately. In Croatia, the Ombudsperson for Gender Equality 
issued a recommendation in 2019 that other more appropriate means, such as visible signs with rules 
of behaviour, should be used, rather than a complete ban on service to male users during certain hours. 
In Norway, the Equality Tribunal found that a fitness centre offering reduced subscriptions for women 
exercising during the evening amounted to sex discrimination, but concluded that this was justified as 
it was a necessary measure to achieve the purpose of getting more women to exercise at the centre in 
the evening. Moreover, men were not disadvantaged by the offer, and the offer was in any case limited to 
50 memberships, thus the advantage for women was relatively small and limited. In Northern Ireland, 
limited exceptions for small dwellings are allowed, exceptions designed to protect privacy and decency 
in  circumstances  where  personal  and/or  health  care  is  provided  or  service  users  will  be  in  a  state  of 
undress, as well as to protect religious freedom. In Ireland, a male-only golf club was not considered 
to be discriminatory. In Estonia, services specifically aimed at supporting women represent a justifiable 
exception to the prohibition of gender discrimination in the consumption and supply of goods and services 
(e.g. shelters). Estonia has a regulated women’s support service and most shelters for victims of domestic 
violence are prepared to meet victims’ needs, e.g. women can be accompanied by children. 

In Lithuania, there is no statutory provision on the possibility of justifications of sex discrimination in the 
sphere of goods and services, but the Office of the Equal Opportunities Ombudsperson does investigate 
individual complaints. For example, women on parental leave until their child reaches the age of three were 
refused consumer credit for financing the purchase of domestic electric appliances. The Ombudsperson 
dismissed this complaint on the ground that there was no evidence that the company had the intention to 
discriminate against the women. It also justified the equal quotas for boys and girls with regard to access 

169

to a Jesuit grammar school for reasons of ‘creditable’ proportional representation of both sexes. Nor did 
it see a violation of equal treatment in the activities of the ‘pink taxi’ company, which was established to 
provide services for women only. 

In Bulgaria, interesting decisions have been taken by both the Supreme Administrative Court and the 
Commission for the Protection from Discrimination, which show a certain amount of deference to moral 
arguments and persisting stereotypes as an excuse for not dealing with the issues at stake from the 
perspective of discrimination. Experts and women’s NGOs in Bulgaria are convinced that these decisions 
are also due to the fact that media and advertisements are excluded from the scope of the Directive. 
Justifications  for  differences  in  treatment  are  specified  in  the  Act  on  the  Human  Rights  and  Equality 
Institution of Turkey (Article 7) with regard to all types of discrimination, including the provision of goods 
and services.

(iii)	

Compliance	with	the	Test-Achats ruling

Since the Test-Achats ruling,626 the laws of all EU Member States have been amended so as to ensure 
that the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance 
and related financial services shall not result in differences in individuals’ premiums and benefits, from 
the date set for this by the Test-Achats ruling, being 21 December 2012 (see also Article 5(1) and (2) of 
Directive 2004/113/EC). 

The only non-EU states in which this is not the case are Liechtenstein, North Macedonia627 and Serbia. 
In Montenegrin law there is no explicit prohibition on this, but it can be inferred from general equality 
law that it does not allow for an exception in this regard. In EEA countries, the CJEU ruling is applicable to 
exchanges of services between EU residents only and therefore in Liechtenstein differences in premiums 
and benefits are still allowed. In Serbia as well risk factors based on sex in connection with insurance 
premiums and benefits are still used in practice. While Hungarian law has been changed, it still allows 
exemption from the unisex rule as regards group life, accident and sickness insurance schemes. 

In Finland, employers have started to provide pension schemes for some of their employees (typically 
for directors or high-level executives) that are not considered to be consumer insurance schemes, and as 
they are not statutory schemes, sex may then be used as an actuarial factor. Estonian law still allows 
insurance undertakings in the assessment of insured risks in sickness insurance to take into account risks 
which are characteristic only of people of one gender and to differentiate, if necessary and corresponding 
to the extent of the specified risks, the insurance premiums and insurance indemnities of women and 
men. This provision is considered to be in contravention of EU law. In Slovenia, insurance undertakings 
may,  in  relation  to  life  assurance,  accident  and  health  insurance,  take  into  consideration  the  personal 
circumstance of gender in the determination of premiums and benefits in general, if this does not lead to 
any differentiation at the individual level. 

A  noteworthy  effect  of  the  amendment  to  the  Spanish  law  in  order  to  comply  with  the  Test-Achats 
ruling has been an increase in car insurance costs for women, since previously it was quite common for 
insurance companies to establish lower prices for women. Under Romanian law all insurance companies 
have the obligation to draft and apply internal norms and procedures regarding the collection, processing, 
publishing  and  updating  of  statistical  and  actuarial  data  used  for  the  calculation  of  premiums  and/or 
benefits. 

626  CJEU, Case C-236/09.
627  Please note, however, that Article 3(4) of the Law on Equal Opportunities for Men and Women ‘prohibits discrimination 

based on sex in access to goods and services in the public and private sector, including discrimination in premiums from 
insurance schemes’ (North Macedonia, Kotevska, B. (2020) North Macedonia – Country report gender equality, European 
Commission, available at: https://www.equalitylaw.eu/downloads/5205-north-macedonia-country-report-gender-equality-
2020-pdf-1-45-mb, p. 56).

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(iv)	

Possibility	of	positive	action	measures

Many legal systems allow for positive action measures in relation to the access to and supply of goods 
and  services  (in  accordance  with  Article  6  of  the  Directive);  in  some  countries  this  was  clarified  only 
recently (Montenegro). However, the adoption of such measures is the exception rather than the rule, 
as only Ireland, North Macedonia, Spain, Sweden and the United Kingdom have done it thus far. 
Such measures include public measures in relation to access to certain goods when women are in special 
situations  of  risk;  for  example,  Spanish  law  states  that  the  Government  will  promote  the  access  of 
women to housing when they are in a situation of need or at risk of exclusion, and when they have been 
victims of gender-based violence. 

The  Irish  Electoral  (Amendment)  (Political  Funding)  Act  2012  provides  that  in  order  to  obtain  state 
funding  during  the  next  parliamentary  term,  each  political  party  must  have  at  least  30  %  female 
candidates running in the next general election. This legislation was enacted because of the low number 
of women parliamentarians, but a constitutional action against this provision has been initiated in the 
courts. In Northern Ireland as well positive action measures are allowed in relation to political parties 
and voluntary bodies. In Sweden, differential treatment of men and women with regard to services and 
housing is allowed, when this is for a legitimate aim and the means applied are necessary and appropriate. 
In Estonia,  a  child maintenance  support  fund  primarily children  and  women, because  the  majority  of 
single  parents  are  women.  Regulations  for  the  fund’s  payments  are  stipulated  by  the  Family  Benefits 
Act (FBA) and the fund became operational on 1 January 2017.628 In Lithuania, the National Payment 
Agency,  under  the  Ministry  of  Agriculture,  has  started  a  programme  in  2020  which  aims  at  providing 
financial support of up to EUR 17 000 for starting a business in rural areas.629 According to the evaluation 
criteria for applications, female applicants will receive an additional 5 points (out of 100 points) solely for 
being female. This has caused some questions, but the Ministry of Agriculture has asserted that there is 
no discrimination because women generally have much lower entrepreneurship skills than men.

(v)	

Specific	problems

Several states have reported specific problems of discrimination on the grounds of pregnancy, maternity 
or parenthood in relation to the access to and supply of goods and services. These include:

 –

 –

complaints  regarding  discrimination  in  the  access  to  and  supply  of  health  services,  mostly  in 
connection  with  female  reproductive  health,  i.e.  abortion  and  accessibility  of  contraception.  In 
Croatia, the Ombudsperson for Gender Equality reported several complaints during 2017 concerning 
the denial of abortions by certain health institutions, and the difficulties experienced by women in 
such cases because health workers may refuse to perform an abortion and pharmacies may refuse 
the  morning-after  pill  to  women  for  reasons  of  conscience.  In  February  2017,  a  decision  by  the 
Constitutional  Court  confirmed  the  constitutionality  of  the  act  regulating  the  right  to  freedom  of 
choice regarding childbirth, stating that this is implied in the right to privacy, which includes self-
determination, freedom of choice and dignity. It has therefore confirmed the existing freedom of 
women  to  decide  on  the  termination  of  their  pregnancy  (within  the  legally  prescribed  limits).630 
Nevertheless, a 2020 survey on the accessibility of legally induced abortions in Croatian medical 
facilities authorised to conduct such procedures reveals that difficulties in accessing abortion, and 
even in receiving information about the availability of such procedures, persist in many of them;
banks refusing to grant loans to women during periods of pregnancy and maternity and parental leave 
(Croatia), but following recommendations of the Ombudsperson for Gender Equality many banks 

628  Estonia, Chapter 4 of the Family Benefits Act, RT I, 24.12.2016, 5, available at: https://www.riigiteataja.ee/en/eli/521062017 

011/consolide.

629  For the programme, see https://www.nma.lt/index.php/naujienos/verslo-paraiskos-nuo-rugsejo-atnaujinta/37910. For 
further information, see https://www.15min.lt/verslas/naujiena/finansai/moterims-parama-gauti-bus-lengviau-bet-tai-
nebus-diskriminacija-662-1260950. 

630  Croatia, Constitutional Court of the Republic of Croatia, Decision of 21 February 2017, U-I-60/1991.

171

 –

 –

 –

 –

 –
 –

changed their practices. Nevertheless, cases of male clients on parental leave being discriminated 
against have been reported, as have cases regarding compensation for new-born children arising out 
of life insurance policies being only available for women;
unequal standards of care and protection for women giving birth, depending on the hospital and 
differences in fees for voluntary abortion (Croatia);
application  of  a  waiting  period  before  self-employed  women  can  insure  themselves  with  private 
insurance companies against the risk of maternity leave (the Netherlands); 
private health insurance companies terminating the membership of pregnant women or excluding 
benefits for pregnancy and childbirth from the beginning (Germany);
the  access  to  health  services  attached  to  insurance  contracts  being  restricted  by  the  widespread 
practice of establishing an initial period during which the contract has no effect, this period possibly 
covering pregnancy time (Portugal);
reported cases of refusals to rent flats to pregnant women (Poland);
denial of services, e.g. in restaurants, to breastfeeding mothers (Germany, Poland). In a ruling of 
14 December 2017, the Court of Appeal in Gdańsk found that preventing a woman from breastfeeding 
her child at a restaurant table constituted discrimination with regard to sex, ordering the restaurant 
owner to pay damages equivalent to EUR 500 plus interest. In addition, the restaurant owner was 
obliged to issue a public statement apologising to the woman for this unlawful behaviour;

 – mothers (occasionally fathers, as well) not allowed to enter shops or buses with a pram (Poland); 
 –

restriction of the presence of fathers (or other companions) in delivery rooms while their partners 
were  giving  birth,  as  a  measure  taken  in  response  to  the  spread  of  COVID-19  in  2020  (Cyprus, 
Estonia, Slovakia); the equality body in Cyprus made an ex	officio intervention against this practice, 
denouncing the practice and urging public and private hospitals to allow women to be accompanied 
by their partners while giving birth;
the  protection  under  domestic  legislation  is  considered  not  sufficiently  clear  and  precise  so  as  to 
allow individuals to understand their rights and for providers of goods and services to understand 
their legal obligations as far as transsexual people, pregnant women and women who have recently 
given birth are concerned (Lithuania);
in the absence of legislation stipulating what kinds of risks have to be covered by private insurance 
programmes,  insurance  companies  do  not  provide  any  standard  travel  and  health  insurance 
programme covering risks related to pregnancy and maternity (Latvia). 

 –

 –

By contrast, in Italy, Article 4(2) of Directive 2004/113/EC has been applied to maintain the exemption 
from fees for all clinical tests related to pregnancy and for certain clinical tests during the same period. 
Moreover, having children is regarded as a preferential ground to have access to public housing, while 
having more than one child is a preferential ground to gain access to a public kindergarten.

In Norway, the Biotechnology Act raised questions about inequality for several years, because sperm 
donation  was  allowed,  but  egg  donation  was  not.  Before  the  change  to  the  Act  in  2020,  the  Equality 
Ombud, among others, criticised this practice. In July 2020, the Parliament decided to permit egg donation 
by changing Section 2-11 of the Biotechnology Act.

In  North  Macedonia,  access  to  health  services  for  Roma  women  remains  an  issue.  This  was  further 
exacerbated during the COVID-19 pandemic.

In Albania, the burden of proof for claims of discrimination regarding access to and supply of goods and 
services is not shifted with respect to civil courts, but only in administrative procedures. 

Another specific problem that has been highlighted by some experts concerns the impact of algorithms 
on gender equality, including in the area of goods and services. For example, in Spain, while online and 
digital market environments are rapidly expanding, the attention dedicated to the impact of algorithms on 
gender equality and the question of algorithmic discrimination is still limited. Estonia provides another 
example of a lack of engagement with the subject of algorithmic discrimination both from the public 

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and from representatives of civil society and the equality body. In France, there is a debate on the risk 
of algorithmic sex discrimination in goods and services outside of employment. For example, algorithms 
can  also  increase  the  risk  of  sex  discrimination  by  raising  prices  for  gendered  products  designed  for 
menstruation (female consumers are easy targets for predatory prices). The European network of legal 
experts in gender equality and non-discrimination has published a report on algorithmic discrimination 
and the state of laws and policies on this issue across the EU.631

Finally, the COVID-19 crisis has also given rise to specific problems relating to equal access to goods 
and  services,  especially  in  relation  to  health.  For  example,  the  Belgian  expert  reports  that  access  to 
care during the pandemic, especially to reproductive care (for example, abortion) has been problematic. 
In  Croatia,  a  thematic  report  on  the  impact  of  COVID-19  on  the  reproductive  health  of  women  was 
published in 2020, looking into reproductive healthcare during the pandemic. The results show that some 
of  the  pre-existing  issues,  such  as  uneven  standards  of  care,  difficulties  in  accessing  or  the  complete 
inaccessibility of certain healthcare services, as well as the lack of available information for patients, 
have continued and were aggravated during the pandemic. 

In Slovakia, the National Centre for Human Rights reported cases where providers refused to provide 
preventive  healthcare  for  women  in  the  form  of  radiological  examinations  (mammography),  which 
forms part of breast cancer screening. Some healthcare providers suspended abortions, referring to a 
government requirement to postpone non-essential operations in response to COVID-19. In Romania, 
access to abortion has been significantly hindered due to the COVID-19 crisis. NGOs reported that the 
large majority of hospitals stopped providing this healthcare service, especially during the few weeks of 
the state of emergency, as they considered it not to be essential healthcare: only 11 % of 112 hospitals 
reviewed and no hospital in the capital city were providing legal abortion services in April 2020, when the 
NGO FILIA Centre carried out telephone research. 

The Turkish expert reports that the pandemic did not only affect access to healthcare. According to a 
survey carried out by the UN Women Turkey Office between 19 and 25 April 2020, women experienced 
greater difficulty in accessing basic supplies and services than men, especially in relation to accessing 
personal protective equipment, such as masks and gloves, as well as ‘health services and assistance’. In 
addition, more than one third of the respondents indicated some or major difficulty in accessing hygiene 
and sanitary products, and public transport. The German expert also reports difficulties in access to goods 
and services during the crisis. The annual report of the Federal Anti-Discrimination Agency recognised that 
women suffered further disadvantages within the context of COVID-19 related restrictions, for example 
in relation to single parents not being allowed to enter stores because they were accompanied by their 
children who, due to lockdown related closures, were not in their usual care facilities. 

631  See the report produced by the European network of legal experts in the field of gender equality, Gerards, J. and Xenidis, R. 

(2020) Algorithmic discrimination in Europe: Challenges and opportunities for gender equality and non-discrimination law, 
European Commission, available at: https://www.equalitylaw.eu/downloads/5361-algorithmic-discrimination-in-europe-
pdf-1-975. 

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9	 Violence	against	women	and	domestic	violence 	

The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic 
Violence  (Istanbul  Convention)  establishes  a  set  of  comprehensive  obligations  for  addressing  violence 
against women and domestic violence within the legal framework of international human rights law.632 The 
Convention recognises in its preamble the structural nature of violence against women (‘a manifestation 
of  historically  unequal  power  relations  between  women  and  men’)633  and  states  the  purpose  of  the 
promotion of substantive equality between women and men, including by empowering women.

The Council of Europe (CoE) adopted the Istanbul Convention on 6 April 2011, and it entered into force 
on  1  August  2014.  In  Europe,  it  is  the  first  instrument  to  set  legally  binding  standards  specifically  to 
prevent violence against women (including girls under the age of 18).634 The Convention covers a broad 
range of measures, including data collection, awareness-raising, protection, provision of support services 
and measures to address migrant women and women lodging asylum claims. It also deals with legal 
measures on criminalising forms of violence against women and the cross-border dimension of violence 
against women.

In  October  2015,  the  European  Commission  published  a  ‘Roadmap:  (A  possible)  EU  Accession  to  the 
Council  of  Europe  Convention  on  Preventing  and  Combating  Violence  against  Women,  and  Domestic 
Violence (Istanbul Convention)’, detailing an initiative that could potentially lead to a Council Decision on 
EU accession to the Istanbul Convention.635 Article 216(1) TFEU gives the EU the external competence 
to  conclude  international  agreements  where  Treaties  or  legally  binding  EU  acts  so  provide,  where  the 
agreement is necessary to achieve one of the objectives referred to by the Treaties, or is likely to affect 
common  rules  or  alter  their  scope.636  Given  that  combating  crime  and  promoting  gender  equality  are 
clearly  established  as  objectives  in  the  EU  acquis,  the  EU  has  the  general  competence  to  accede  to 
the Istanbul Convention.637 Under Article 216(2) TFEU, agreements concluded by the EU are binding on 
its institutions and its Member States.638 Thus, in case of EU accession to the Istanbul Convention, the 
Member  States  will  be  bound  by  both  the  EU  policies  that  implement  the  Convention  and  the  duties 
arising from their own ratification. To date, the only international human rights treaty ratified by the EU 
is  the  United  Nations  Convention  on  the  Rights  of  Persons  with  Disabilities  (UN  CRPD).639  On  13  June 
2017, the EU became a signatory to the Istanbul Convention. The European network of legal experts in 
gender equality and non-discrimination published a report on the legal implications of EU accession to 
the Istanbul Convention in 2016.640

As  accession  to  the  Istanbul  Convention  has  so  far  not  been  approved  by  the  Council,  the  European 
Commission  published  a  new  roadmap  on  3  August  2020.641  On  16  December  2020  the  Commission 
published the inception impact assessment, in which it highlighted three possible legislative and non-

632  Council of Europe, CETS No. 210, adopted 11 May 2011 and entered into force 1 August 2014.
633  Preamble, Istanbul Convention.
634  See Article 3(f ) of the Convention.
635  European Commission, (2015) (A possible) EU Accession to the Council of Europe Convention on preventing and combating 
violence against women and domestic violence (Istanbul Convention), available at: http://ec.europa.eu/smart-regulation/
roadmaps/docs/2015_just_010_istanbul_convention_en.pdf. After the cut-off date of this report the European Parliament 
adopted its resolution of 28 November 2019 on the EU’s accession to the Istanbul Convention and other measures to 
combat gender-based violence, available at: http://www.europarl.europa.eu/doceo/document/TA-9-2019-0080_EN.html.

636  Article 216(1) TFEU.
637  After the cut-off date of this report, on 6 October 2021, the CJEU handed down opinion A-1/19 which defines the limits of 

the EU and the Members States’ competence in this regard.

638  Article 216(2) TFEU.
639  Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations 

Convention on the Rights of Persons with Disabilities (2010/48/EC), available at: http://eur-lex.europa.eu/legal-content/EN/
TXT/PDF/?uri=CELEX:32010D0048&rid=1.

640  Nousiainen, K., Chinkin, C. (2015) Legal implications of EU accession to the Istanbul Convention, European Commission, 

available at: https://www.equalitylaw.eu/downloads/3794-legal-implications-of-eu-accession-to-the-istanbul-convention.

641  Violence against women and domestic violence – fitness check of EU legislation, Ref. Ares (2020), available at: https://

ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12472-Violence-against-women-and-domestic-violence-
fitness-check-of-EU-legislation?fbclid=IwAR0_XUlaiNW4-VI569U_LhY4RIDE_RundnRr9_XJigDS34ICD-DiYHfJ5G8.

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legislative scenarios for future EU action.642 In particular, Option No. 3 consists of a ‘holistic legislative 
initiative  on  preventing  and  combatting  gender-based  violence  and  domestic  violence’  aimed  at  ‘a 
comprehensive  sectoral  directive  to  prevent  such  violence,  strengthen  the  protection  of  victims  and 
witnesses  and  punish  offenders.’  A  proposal  for  a  Directive  on  preventing  and  combatting  violence 
against  women  and  domestic  violence  is  indeed  being  prepared.  To  inform  the  Commission’s  work  on 
this legislative initiative, the European network of legal experts in gender equality and non-discrimination 
published a comparative analysis of the criminal law provisions that are applied to gender-based violence 
against women, including ICT-facilitated violence, authored by Sara De Vido and Lorena Sosa in 2021.643

As of the information cut-off date of this comparative analysis, the Istanbul Convention has been signed 
by 45 members of the Council of Europe, 34 of which have ratified the Convention.

Of the EU Member States, 21 had ratified the Convention by 1 January 2021: Austria, Belgium, Croatia, 
Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, 
Netherlands, Poland, Portugal, Romania, Slovenia, Spain and Sweden. Of the EEA countries, Norway 
and Iceland have ratified. Most of the candidate countries have ratified (Albania, Montenegro, North 
Macedonia, and Serbia). In addition, Liechtenstein ratified the Convention in 2021.

Turkey withdrew from the Convention in March 2021 (after the official cut-off date for this report). In 
Hungary, the leaders of the ruling right-wing political alliance announced that there is no intention to 
ratify the Convention. In Bulgaria, the Constitutional Court ruled on the constitutionality of a draft law 
for the ratification of the Convention in 2018, finding by a simple majority that the Convention is not in 
compliance with the Bulgarian Constitution. In 2020, the Slovak government announced to the Council 
of Europe that it would not ratify the Convention. 

In Czechia there has been no progression on ratification, and there is strong criticism of the Convention 
by one part of the Catholic Church and also some other churches. In Latvia, the Constitutional Court 
decided in 2021 that there is nothing in the IC contrary to the Constitution of Latvia.644 In  Lithuania 
ratification is still pending, but the political and public debate on the issue polarised in 2020. 

In Poland, discussions about withdrawing from the Convention are ongoing. In 2020, the Prime Minister 
requested  the  Constitutional  Tribunal  to  examine  the  compatibility  of  several  of  the  Convention’s 
provisions with the Constitution of Poland.

Legislative amendments that were adopted in the Member States because of ratification of the Convention 
sometimes took the form of modifications to national Criminal Codes. Proposals to amend the law are 
ongoing in several countries,645 including those which had already ratified the Istanbul Convention a few 
years ago (e.g. Cyprus, Iceland and the Netherlands). In Greece, a new Penal Code entered into force in 
2019. Most experts report that violence against women is an actively debated topic in politics and society. 

642 

Inception Impact Assessment, Ref. Ares (2020)7664101 – 16/12/2020, available at: https://ec.europa.eu/info/law/better-
regulation/have-your-say/initiatives/12682-Combating-gender-based-violence-protecting-victims-and-punishing-offenders. 

643  De Vido, S., Sosa, L. (2021) Criminalisation of gender-based violence against women in European States, including ICT-

facilitated violence, European Commission, available at: https://www.equalitylaw.eu/downloads/5535-criminalisation-of-
gender-based-violence-against-women-in-european-states-including-ict-facilitated-violence-1-97-mb.

644  Latvia, Case no No. 2020-39-02. Press release in English available at: https://www.satv.tiesa.gov.lv/en/press-release/a-

case-initiated-with-respect-to-the-compliance-of-the-istanbul-convention-with-the-satversme/. Case No. 2020-39-02, 
decided on 4 June 2021. See https://www.satv.tiesa.gov.lv/en/press-release/information-regarding-the-judgment-of-the-
constitutional-court-of-the-republic-of-latvia-in-case-no-2020-39-02-on-the-compliance-of-the-istanbul-convention-with-
the-constitution-of-latvia/.

645  GREVIO (2021), Mid-term Horizontal Review of GREVIO baseline evaluation reports, available at: https://rm.coe.int/

horizontal-review-study-2021/1680a26325. 

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10   Compliance and enforcement aspects (horizontal provisions of 

all directives)

This chapter concerns the way in which states have given effect to the horizontal provisions of all EU 
gender  equality  directives,  that  is  to  say  those  that  have  a  bearing  on  ensuring  compliance  with  and 
enforcement of the EU rights and obligations contained therein. It also considers whether and how states 
have incorporated the concept of gender mainstreaming at the national level. 

10.1	 Victimisation

As a matter of EU gender equality law, people who have made a complaint or instigated legal proceedings 
aimed at enforcing compliance with the principle of equal treatment have to be protected against dismissal 
or any adverse treatment or consequence in reaction to their action (Article 24 of Directive 2006/54/EC 
and Article 10 of Directive 2004/113/EC). Experts from all Member States, except for North Macedonia 
and to some extent Sweden, have reported that their national level is up to the EU standard, in some 
states the prohibition having been made more explicit recently (Croatia, Italy). In North Macedonia, 
protection  is  only  ensured  for  anti-mobbing  procedures.  Victimisation  is  defined  in  a  limited  way  as 
unfavourable treatment and exposure of a person to endure damage because of initiating a procedure 
or testifying in such a procedure. In Sweden, the prohibition as such seems to meet the requirements 
of the Recast Directive. What can be called into question is the fact that the ban on reprisals does not 
meet the requirement in Article 2.2.a of the directive that it should be included in the actual concept of 
discrimination. However, the Labour Court awarded compensation in damages of EUR 7 900 to a woman 
who was dismissed on the very day she made a complaint about sexual harassment. 

In  Turkey,  the  previous  Article  5  of  the  Employment  Act  was  the  main  provision  for  employees  but 
was deemed inadequate. Now, a new approach to enforcement is envisaged by the Act on the Human 
Rights and Equality Institution (Act No. 6701). The Human Rights and Equality Institution must investigate 
discrimination upon a complaint and ex officio, and must impose a fine on natural persons and on public/
private legal entities in case of discrimination. Furthermore, it must help and guide victims concerning 
administrative and legal procedures.

Yet there are certain limitations to the level of protection in some other states as well. In Portugal, there 
is no explicit reference to victimisation in relation to discrimination in the legal system, this being confined 
to  the  area  of  employment.  The  Latvian  expert  has  noted  that  it  would  be  desirable  to  implement 
protection against victimisation in the field of social security as well. In Poland, questions concerning the 
protection against victimisation have arisen in judicial practice, in particular in respect of the possibility 
of awarding compensation. Until the introduction of the new Labour Code in May 2019, the list of non-
personal discrimination criteria was exhaustive, thus leading the Supreme Court to conclude that being 
in litigation with an employer over defending workers’ rights did not fall under the prohibited grounds. 
The  Belgian  expert  considers  the  effectiveness  of  the  protection  against  victimisation  in  her  country 
disputable,  because  it  mostly  concerns  dismissal  of  the  victim  and  the  amount  of  fixed  damages  for 
unlawful  dismissal  is  considered  too  limited  to  be  a  real  deterrent  (six  months’  gross  remuneration), 
unless for very small businesses. Moreover, the compatibility of Article 22 of the Belgian Gender Act with 
Article 24 of Directive 2006/54/EC has been called into question by the labour tribunal of Antwerp, which 
referred to the CJEU for a preliminary ruling on this matter. The CJEU held that Article 24 does indeed 
preclude legislation such as the provision in question, which limits the protection against dismissal for 
witnesses only if they have reported the facts in a signed and dated document.646 

In February 2017, a proposal to amend the definition of victimisation in the Gender Equality Act passed 
the first reading in the Croatian Parliament, this under pressure of the European Commission to bring 

646  Case C-404/18, Jamina Hakelbracht and Others v WTG Retail BVBA, judgment of 20 June 2019, ECLI:EU:C:2019:523.

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this  definition  more  in  line  with  that  contained  in  the  Anti-discrimination  Act.  In  the  expert’s  opinion 
this was not really necessary from a legal point of view, but it may still add to the legal certainty of 
those concerned. In Estonia, Article 5(1.1) of the Gender Equality Act, which provides protection from 
victimisation,  is  often  ignored  by  employers  and  law  enforcement  agencies.  The  Montenegrin  expert 
has noted that a number of law enforcement officers in her country are ignorant about the notion of 
victimisation. 

10.2	 Burden	of	proof

A second important issue concerns the provision made in national law for a shift of the burden of proof 
in  sex  discrimination  cases.  As  a  result  of  difficulties  which  are  inherent  in  proving  discrimination,  EU 
gender equality law provides for a shift in the burden of proof. An alleged victim of discrimination has to 
establish, before a court or other competent authority, facts from which it may be presumed that there 
has been direct or indirect discrimination. It is, however, for the respondent to prove that there has been 
no breach of the principle of equal treatment. If the Member States so wish, they may introduce more 
favourable rules for claimants. These rules also apply in the area of goods and services, but do not apply 
in criminal proceedings (Article 19 of Recast Directive 2006/54/EC and Article 9 of Directive 2004/113/EC).  
Again, various aspects of this law of evidence in discrimination cases were initially developed by the Court 
of Justice647 and only later laid down in legislation.

In all domestic legal systems covered by this report the shift of the burden of proof is ensured, in most 
of them by way of legislation and in some confirmed in case law (Bulgaria, Ireland, Italy, Slovakia). In 
Estonia, if the employer refuses to provide proof, such a refusal is deemed to be an acknowledgment of 
discrimination. However, the rules pertaining to the burden of proof establish high evidentiary thresholds 
that represent obstacles to victims of discrimination seeking redress. In Slovakia, legislation has been 
improved and the scope of applicability of the shift of the burden of proof is now actually wider than that 
contained in the directives, as it applies to all forms of discrimination.

However, in some countries the law is somewhat ambiguous, containing slightly different rules in various 
pieces of legislation (Croatia, Montenegro, Serbia). In some countries, there has not been any or only 
poor experience with this in practice, because of the lack of (adequate) case law (Liechtenstein, Serbia). 
In yet others, the case law is not very satisfactory. In Montenegro, while, according to the national expert, 
the new Labour Law is broadly in line with EU legislation, the Law on the Prohibition of Discrimination 
is not. An amendment of the latter to harmonise it with Directive 2006/54/EC is underway. While the 
Hungarian Supreme Court guidelines on employment cases point to the difference between the burden 
of proof in cases on misuse of the law (direct burden of proof) and equal treatment cases (shared and 
reversed burden of proof) and regardless of the ongoing discussion of the burden of proof, lower-level 
courts  in  Hungary  still  rather  frequently  request  claimants  to  prove  the  occurrence  of  discrimination, 
according to available information. 

In Greece, the rules on the statute books are fine, but they do not seem to be applied, as the Ombudsman 
also notes, even in spite of a relevant CJEU preliminary ruling in a Greek case.648 An important reason for 
this is that they are contained in the legal acts transposing the directives without being incorporated into 
the procedural codes and are therefore hardly known. In Romania, the burden of proof has three different 
definitions in three different legislative acts, of which two fall short of the EU definition. This leads to a 
situation of inconsistent application of the burden of proof in practice. In Poland, the burden of proof 
provision in the law has been understood by many courts as requiring claimants not just to present basic 
facts, but also to make probable the existence of discrimination by indicating its ground, so in fact asking 
about the employer’s motivation.

647 
In CJEU, Danfoss and Kelly and Meister.
648  CJEU, C-196/02 Nikoloudi [2005] ECR I-1789.

177

Another problem relates to access to information. In France, the Court of Cassation heard a case very 
similar to the CJEU’s Meister case, holding that the Court of Appeal was right in deciding that the employees 
had a legitimate aim in demanding the communication of information necessary for the protection of 
their rights, information that only the employer had access to and that he refused to communicate. 

In  Germany,  the  lack  of  information  rights  is  also  considered  problematic,  together  with  the  courts’ 
reluctance  to  use  statistical  data  as  prima  facie  evidence.  The  2017  Pay  Transparency  Act  does  not 
entirely solve these problems. United Kingdom law is considered deficient in the light of EU (case) law 
to the extent that a potential claimant may be unable to obtain the necessary information to establish 
facts that are such as to shift the burden of proof. 

Some  countries,  however,  do  provide  for  a  specific  right  to  information,  such  as  Ireland.  In  Italy,  as 
regards  the  use  of  quantitative/statistical  data,  national  legislation  goes  further  than  EU  law,  as  it 
requires companies with more than one hundred employees to draw up bi-annual reports on the workers’ 
situation as regards recruitment, professional training, career opportunities, remuneration, dismissal and 
retirement. In Latvia, access to information is not guaranteed by law and it is up to the court to decide if 
there is a ground to request any information which is only at the disposal of the respondent. 

A particular problem has occurred in Finland, where case law has centred on whether a comparison may 
be made if there are both women and men among those with lower pay. The Labour Court has held that 
the burden of proof may be shifted onto the defendant if the claimant can present at least one comparator 
of the opposite sex who has better pay for equal work, irrespective of there being both women and men 
in lower and higher pay brackets doing equal work. However, in cases concerning the new pay system for 
judges, the Supreme Court and the Supreme Administrative Court decided that because both men and 
women were placed in lower pay bracket posts, there could be no pay discrimination. The claimants had 
not even managed to establish an assumption of discrimination, which would reverse the burden of proof 
onto the defendant. The Courts did not proceed to consider whether indirect discrimination could have 
been at issue, which would have required a comparison of how female and male judges were positioned 
in different pay brackets.

10.3  Gender mainstreaming

Gender  mainstreaming,  which  at  EU  level  is  enshrined  in  Article  8  TFEU,  is  an  important  tool  which 
aims to ensure that gender equality is realised in all areas of life. As such, it requires of legislators and 
policy makers that a gender perspective is taken in the entire process of law and policy-making, from 
preparation to implementation, and that evaluation and monitoring processes are applied to ensure that 
gender  mainstreaming  has  been  successfully  implemented.  Different  approaches  have  been  taken  by 
states to incorporate this tool into the national context. 

Gender  mainstreaming  is  explicitly  regulated  by  law  in  many  of  the  36  states  reported  on  (Albania, 
Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, 
Lithuania, North Macedonia, Slovenia, Spain, United Kingdom).

In Iceland, gender mainstreaming has been part and parcel of the gender equality legislation since Act 
No. 96/2000. Article 2 of Act No. 10/2008 defines the concept of gender mainstreaming as ‘Organising, 
improving,  developing  and  evaluating  the  policy-making  process  in  such  a  way  that  gender  equality 
perspectives are incorporated in all spheres in the policy-making and decisions of those who are generally 
involved in policy-making in society.’

In  Germany,  several  provisions  require  the  active  fostering  of  gender  equality  at  the  Federal  level. 
Article 3(2) of the Basic Law imposes an explicit duty on the state to promote gender equality. Moreover, 
Section  2  of  the  Federal  Gender  Equality  Act  (Bundesgleichstellungsgesetz,  BgleiG)  imposes  a  similar 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Compliance and enforcement aspects (horizontal provisions of all directives)

duty on all employees of the Federal administration, while Section 2 of the Joint Rules of Procedure of 
the Federal Government (Gemeinsame Geschäftsordnung der Bundesregierung, GGO) explicitly refers to 
the term gender mainstreaming and indicates that the equality of women and men is a leading principle 
(Leitprinzip)  and  should  be  promoted  within  the  context  of  all  political,  legislative  and  administrative 
activities.  There  are  a  number  of  other  legal  provisions  that  explicitly  recognise  the  need  to  promote 
gender equality. However, it is difficult to measure how effective these measures are in practice.

In Belgium, the current gender mainstreaming approach implemented at federal level is based on the 
adoption of the federal law of 12 January 2007, on the structural integration of the gender dimension 
in all federal policies. A key institutional arrangement for implementing the law is the interdepartmental 
coordination group (CIG), which was established by royal decree in 2010. It is composed of representatives 
of ministers’ private offices, nominated by the relevant minister, civil servants from each administration 
and representatives from the Gender Institute. The law also provides for data collection, gender impact 
assessments  and  gender  budgeting  instruments.  Gender  mainstreaming  acts  with  similar  features  as 
found in the federal law have been adopted in all regions and communities except for Flanders and the 
German-speaking community.

In Greece, gender mainstreaming has been regulated for the first time by Act 4604/2019, defining it as 
‘the  strategy  for  the  realisation  of  substantive  gender  equality,  which  includes  gender  mainstreaming 
in the preparation, the planning, the application, the follow-up and the evaluation of policies, regulatory 
measures  and  expense  programmes  for  the  achievement  of  equality  between  women  and  men  and 
the  fight  against  discrimination’.  Article  3(1)  Act  4604/2019  provides  that  the  gender  dimension  has 
to  be  integrated  into  all  areas  of  private  and  public  life  and,  in  particular,  into  the  country’s  political, 
social,  economic  and  cultural  reality.  Gender  mainstreaming  should  be  applied  in  public  policy,  in  the 
budgeting processes of ministries, the drafting of public documents, the collection of statistical data, and 
in education, public health policy and research.

In Spain, the framework reference for gender mainstreaming is Law 3/2007 on Effective Equality, which 
applies at national, regional and local level. Article 15 of the Law on Effective Equality establishes that 
‘the principle of equal treatment and opportunities between women and men will inform, in a transversal 
manner, the actions of all public powers’ and that ‘the public administration will actively integrate it into 
the adoption and execution of its regulatory provisions, into the definition and budgeting of public policies 
in all areas and into the development of all its activities’. The Equality Law also prescribes the creation 
of gender units within all ministries to reinforce gender mainstreaming, as well as an Inter-Ministerial 
Commission for Equality that coordinates and monitors equality policy. Equality Plans are the main tool 
to  implement  gender  mainstreaming.  However,  these  are  non-mandatory  policy  instruments  adopted 
in the respective fields of competence of the different public administrations, and they can be found at 
different  levels  (national,  regional  and  local),  in  addition  to  sectoral  equality  plans.  The  main  national 
policy reference for gender mainstreaming is the National Equal Opportunities Strategic Plan, which must 
be periodically approved according to Law 3/2007 and guides public policy on equality. The renewal of 
the Strategic Plan, however, has been pending since 2016. 

Among those states that regulate gender mainstreaming through legislation, an explicit duty related to 
gender mainstreaming is found in Denmark, Finland, France, Ireland, Lithuania, North Macedonia, 
Slovenia and the United Kingdom. 

Finnish law imposes an explicit duty on the authorities to promote gender equality in all their activities 
in a targeted and systematic manner, as well as to provide such administrative proceedings that ensure 
that gender equality is promoted in decision-making. The Ministry of Justice provides guidelines for law 
drafting which list many types of impacts that should be considered in the context of preparing laws. One 
of  the  categories  covers  societal  impacts  (Chapter  5),  among  them  the  impact  on  non-discrimination, 
children and gender equality. The guideline stresses the impacts on values and attitudes, the rule of law, 
legal relations and civil society. 

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French law imposes on the state and its institutions an integrated approach to enforcing its policy on 
equality. For the Government, it consists of ‘systematically taking into consideration the differences in 
situations between women and men in all policies and public programmes and providing, if necessary, 
targeted actions to correct inequalities’.649 

In Ireland, the law does not mention gender specifically but requires that the Irish Human Rights and 
Equality Commission (IHREC) keep under review the adequacy and effectiveness of law and practice in 
the state relating to the protection of human rights and equality; either of its own volition or on being so 
requested by a Minister of the Government, to examine any legislative proposal and report its views on 
any implications for human rights or equality; and either of its own volition or on being so requested by 
the Government, to make such recommendations to the Government as it deems appropriate in relation 
to  the  measures  which  the  Commission  considers  should  be  taken  to  strengthen,  protect  and  uphold 
human rights and equality in the state. This is similar to how gender mainstreaming is regulated in the 
United Kingdom as well. 

In Slovenia, gender mainstreaming is legislated through the Act on Equal Opportunities for Women and 
Men. According to Article 11, the Government and all ministries are obliged to take gender equality into 
consideration when planning, designing and implementing policy measures. All ministers must appoint 
coordinators for equal opportunities for women and men, who are then responsible for the implementation 
of  duties  within  the  competence  of  the  ministry.  Furthermore,  the  Ministry  of  Labour,  Family,  Social 
Affairs and Equal Opportunities has adopted several methods and tools for gender mainstreaming, such 
as gender awareness-raising, gender budgeting, gender impact assessment, gender indicators, gender 
planning, gender statistics and sex-disaggregated data.

Some states have incorporated gender mainstreaming strategies in some form through policies but do 
not have any law regulating this (Croatia, Estonia, Liechtenstein, Luxembourg, Malta, Netherlands, 
Norway,  Serbia  and  Sweden).  Among  these,  some  include  gender  mainstreaming  in  their  national 
gender  strategy  or  action  plans  (Luxembourg,  Norway,  Serbia  and  Sweden)  or  other  policy  papers 
(Liechtenstein).  For  example,  in  Sweden,  gender  mainstreaming  has  been  the  official  strategy  for 
gender  equality  policy  since  1994  and,  since  2002,  gender  mainstreaming  has  been  included  in  the 
budgetary work of the Government. This strategy is implemented through a number of action plans that 
are continuously revised and evaluated. Currently, there are action plans on prostitution and trafficking, 
female genital mutilation, gender equal pensions, gender equal life income, and feminist foreign policy. 

Gender mainstreaming is also at the heart of Luxembourg’s new National Action Plan on Gender Equality, 
which considers gender equality as a cross-cutting priority for all policies. The Norwegian government 
has included gender mainstreaming in its overall strategy for gender equality, but keeps gender-specific 
action as an equally important approach. The gender mainstreaming approach calls for the integration 
of  gender  perspectives  into  all  stages  of  policy  processes  –  design,  implementation,  monitoring  and 
evaluation – to promote equality between women and men. The strategy recognises gender as a cross-
cutting issue which has relevance in most areas of society.

In Malta, a Gender Mainstreaming Unit was set up in January 2019. This Unit forms part of the Human 
Rights  Directorate  and  is  responsible  for  the  development  of  the  first  national  framework  on  Gender 
Equality and Gender Mainstreaming. It serves as a coordinating body between entities and assists the 
government in policy-making. It strives to raise awareness and provide training. The Unit is in the process 
of publishing an equality and mainstreaming strategy and action plan.

In the Netherlands, gender mainstreaming is also not legally mandated. The Dutch Ministry of Education, 
Culture and Science (OCW) is responsible for the national emancipation policy. It enters into cooperation 

649  Secrétariat d’Etat chargé de l’égalité entre les femmes et les hommes (2017), Vers l’égalité réelle entre les femmes et les 

hommes: Chiffres clés 2017 (Towards real equality between women and men: key figures 2017), p. 4.

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agreements with other ministries about gender topics which fall within their domain. These agreements 
specify what and how those ministries must contribute to the emancipation objectives set out in national 
policy.  This  means  that  ministries  other  than  the  OCW  are  held  accountable  by  Parliament  for  the 
implementation of gender equality policy. 

The  national  experts  report  various  difficulties  and  shortcomings  with  gender  mainstreaming.  In 
Denmark, the Danish legislature utilises a Gender Mainstreaming Assessment scheme when adopting 
new legislation. According to the guidelines of this scheme, the respective ministers are responsible for 
equality / gender mainstreaming within their own areas, including gender mainstreaming assessment of 
policies, legislation and activities to determine if and how it impacts gender equality. According to the 
guidelines, all legislative proposals must be screened by the respective ministry / government agency as 
part of a relevance test. However, despite the implementation of gender mainstreaming obligations being 
regulated by law, there are no provisions for their enforcement nor sanctions for failing to do so. 

In Lithuania, gender mainstreaming is incorporated in the legislation in a very formal way. State and 
municipal institutions and agencies must, within their competence, ensure that equal rights for women and 
men are guaranteed in all the legal acts drafted and adopted by them; draw up and implement programmes 
and measures aimed at ensuring equal opportunities for women and men; and support the programmes 
of  public  establishments,  associations  and  charitable  foundations  which  assist  in  implementing  equal 
opportunities for women and men. In reality, ex ante evaluations and impact assessments of legislation 
are not implemented in designing public policy in Lithuania. Moreover, according to the national expert, 
the  ignorance  of  the  gender  dimension  at  every  stage  of  the  political  and  legislative  process,  not  to 
mention  the  executive  level,  suggests  that  gender  mainstreaming  is  quite  generally  perceived  as  an 
unnecessary formal burden with no public or private institution willing to demand its proper execution. 

Gender impact assessments and gender-sensitive budgeting are still not part of standard procedure in 
Croatia. However, other tools are used to incorporate and take account of gender aspects in law and 
policy-making, which involves various actors. The Government has pledged to promote equality between 
men  and  women  in  society,  the  labour  market  and  in  the  family  in  its  main  strategic  document,  the 
Government Programme for the mandate from 2020 to 2024. The Ombudsperson for Gender Equality 
actively participates in the drafting process of legislation concerning gender equality, either as a member 
of  the  working  group,  or  by  providing  comments  in  the  process  of  public  consultations.  The  Office  for 
Gender Equality serves as a technical service of the Government for the preparation of activities related 
to gender equality and is in charge of preparing national policy on gender equality.

Several  experts  reported  that  there  is  neither  a  law  on  gender  mainstreaming,  nor  are  there  any 
policies  aimed  at  incorporating  gender  mainstreaming  into  legislative  and  policy-making  processes  in 
their  states  (Cyprus,  Czechia,  Hungary,  Italy,  Latvia,  Montenegro,  Poland,  Portugal,  Romania, 
Slovakia and Turkey). In Czechia, the government has recognised this method as a legitimate tool for 
the implementation of equal opportunities for men and women and marked it as a priority task in this 
area,650 but unfortunately, this has remained merely a declaration of intent and the method of gender 
mainstreaming is not used in policy-making or evaluation in practice. 

In  Estonia,  while  the  Gender  Equality  Act  prescribes  that  gender  equality  must  be  integrated  into  all 
policies by all national agencies, a gender perspective is poorly, and often not at all, integrated into the 
preparation, design, implementation, monitoring and evaluation of policies.651 There is no gender equality 
strategy. The Hungarian expert observed that since 2011, the Hungarian government has committed 
to family	mainstreaming rather than gender mainstreaming. The Latvian Ministry of Welfare has made 
some  attempts  to  educate  colleagues  from  other  ministries  on  gender  mainstreaming,  but  without 

650  Czechia, Government Resolution No. 456 of 9 May 2001.
651  However, it is sometimes claimed that the Gender Equality Programme 2021-2024 (a rolling programme which is updated 
every year) constitutes a gender mainstreaming strategy. See https://www.sm.ee/sites/default/files/lisa_4_soolise_
vordoiguslikkuse_programm_2.pdf (only in Estonian).

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success.  According  to  the  national  expert,  gender  mainstreaming  is  not  considered  noteworthy  in  the 
Latvian political decision-making process. 

10.4	 Remedies	and	sanctions	

The degree to which EU gender equality law will have the desired effects will depend to a considerable 
extent on the remedies and sanctions national laws provide for. While it is up to the Member States to 
decide on the applicable remedies and sanctions for breaches of EU gender equality law (e.g. compensation, 
reinstatement, criminal sanctions, administrative fines etc.), EU law requires that infringements of the 
prohibition of discrimination must be met with effective, proportionate and dissuasive sanctions. The CJEU 
initially developed these requirements and they were only later laid down in EU discrimination legislation 
(see Articles 18 and 25 of Recast Directive 2006/54/EC and Articles 8 and 14 of Directive 2004/113/EC).  
Compensation  or  reparation  must  also  be  proportionate  to  the  damage  suffered.  The  fixing  of  a  prior 
upper limit may not, in principle, restrict this. Similarly, national law may not exclude awarding interest.652

(i)	

Types	of	remedies	and	sanctions

As a consequence of the national autonomy that remains, the variety of national remedies and sanctions 
provided for victims is huge. These include, also depending on the type of violation of gender equality 
law involved:

 –
 –

 –

 –

 –

 –
 –

 –

 –

declaration of the rights of the claimant (United Kingdom);
request for annulment of unlawful provisions (Belgium, Greece, Liechtenstein, Serbia), nullity of 
discriminatory  provisions  and  practices  (Bulgaria,  France,  Greece,  Italy,  Latvia,  Luxembourg, 
Malta,  Spain),  prohibition  or  termination  of  the  discriminatory  activities  (Bulgaria,  Estonia, 
Greece, Hungary, Latvia, Norway, Serbia, United Kingdom) or action for restitution (Slovakia, 
Slovenia, Turkey);
certain  right  to  reinstatement  (Austria,  Cyprus,  Estonia,  Finland,  France,  Greece,  Hungary, 
Ireland,  Latvia,  Lithuania,  Luxembourg,  Malta,  Netherlands,  North  Macedonia,  Portugal, 
Romania, Slovenia, Spain, Turkey) or nullity of the dismissal (Estonia, Greece, Spain, Sweden) 
and of the refusal to hire or promote (Greece);
compensation  (Austria,  Bulgaria,  Croatia,  Czechia,  Denmark,  Finland,  France,  Germany, 
Hungary,  Italy,  Liechtenstein,  Malta,  Netherlands,  North  Macedonia,  Portugal,  Romania, 
Serbia, Spain, Sweden, Turkey, the United Kingdom), also explicitly including interest (Cyprus, 
Greece,  Ireland,  Lithuania)  and  compensation  for  non-material  or  moral  damages  (Bulgaria, 
Croatia, Cyprus, Denmark, Estonia, Greece, Hungary, Iceland, Latvia, Lithuania, Luxembourg, 
Norway, Poland (in practice), Romania, Serbia, Slovakia, Slovenia) when a person’s reputation, 
respect in society or dignity has been harmed (Czechia) or distress has been caused because of 
victimisation (Ireland);
penalty  payments  and  administrative  fines  (Austria,  Belgium,  Bulgaria,  Cyprus,  Denmark, 
Finland,  Greece,  Hungary,  Iceland  (including  per  diem  fines),  Latvia,  Luxembourg,  North 
Macedonia, Norway, Portugal, Romania, Serbia, Slovenia, Spain, Sweden, Turkey);
denial or revocation of certain public allowances or financial benefits (Italy, Portugal); 
automatic application of the most beneficial pay provision to employees of both sexes, provided they 
perform equal work/work of the same value (Greece, Portugal);
publication of the court’s decision (Serbia), at the respondent’s costs (Croatia) or publication of the 
decision on the website of the respondent and that of the Equal Treatment Authority (Hungary);
temporary measures in order to prevent discriminatory treatment and to avoid major irreparable 
damage (Serbia).

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

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

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In the Netherlands, since 1 July 2015, victims of discriminatory dismissals can also request reasonable 
compensation instead of requesting the court to invalidate the termination. Until this date damages were 
hardly ever claimed (let alone awarded) in cases of discrimination and the expectation is that this will 
now change. A ‘transitional benefit’ was also introduced on 1 July 2015. All employees who have been 
employed for two or more years, whether on the basis of a permanent contract or a fixed-term contract, 
are entitled to this benefit in the event of the termination of their employment, unless the termination is 
the result of serious misconduct by the employee. 

In Ireland, a claimant may be awarded up to EUR 15 000 by the Workplace Relations Commission under 
the Equal Status Act 2000; at the claimant’s election in the case of a claim of gender discrimination, the 
claim may be brought to the Circuit Court where they may be awarded unlimited compensation. The Irish 
expert has reported a case in which the claimant (a very senior sales and marketing director) obtained 
a total of EUR 315 000 for discriminatory dismissal during maternity leave and for distress caused by 
victimisation.  Swedish  law  allows  for  ‘discrimination  compensation’,  which  according  to  its  Supreme 
Court can be divided into dignity compensation and preventive compensation. 

In Turkey, the newly introduced Act on the Human Rights and Equality Institution now provides for the 
possibility for the Human Rights and Equality Board to issue warnings and to impose an administrative 
fine, and for the gravity of the violation, the perpetrator’s economic status and multiple discrimination, if 
any, to be considered as aggravating factors. Discriminatory acts will be punishable with fines of between 
TL 1 000 and TL 15 000.653 If the Board determines that the discriminatory act constitutes a crime, it will 
report this crime. 

In  Portugal,  a  new  law  was  introduced  in  2017  specifically  reinforcing  the  protection  of  harassment 
victims by granting them accrued rights to damage compensation and imposing upon the employer the 
duty to approve a Code of Conduct in relation to harassment practices in the company as well as the 
duty to start a disciplinary procedure against perpetrators of harassment. It also extended the protection 
against dismissal to witnesses of harassment who denounce such practices. 

Under the German Victim Compensation Act, if the offender is not identified, victims of gender-based 
violence  can  make  a  claim  for  compensation.  In  the  past,  there  was  a  restricting  condition  that  the 
assault  must  have  been  of  a  physical  nature,  although  the  consequences  compensated  could  include 
severe  psychological  harm  or  suffering.  With  the  Social  Compensation  Act  of  12  December  2019,  the 
compensation law was fundamentally restructured and, among other things, the concept of the violent 
act giving rise to a claim was extended to include ‘acts of psychological violence’. Nevertheless, the scope 
of  application  is  restricted  to  compensation  for  harm  suffered  by  ‘a  serious  conduct  directed  directly 
against the free will and choice of a person’, e.g. human trafficking, forced prostitution, stalking, abduction 
and extortion. With the exception of stalking, these offences are very likely to be performed with physical 
violence, which was already covered by the law.654 

While  in  many  states  the  level  of  compensation  is  capped  (see  further  below),  this  is  not  the  case  in 
Finland,  France,  Italy,  Norway,  Poland  and  the  United  Kingdom.  In  Lithuania  the  compensation 
for non-material damages has no maximum amount either, but the courts are reluctant to award high 
compensation for non-material damages. For example, for the discriminatory refusal to employ Roma 
women as waitresses in a bar, the employer was obliged to pay compensation of approximately 2.5 times 
the minimum wage in non-material damages instead of employment. By contrast, in Slovenia damages 
are  not  capped  in  the  private  sector,  but  they  are  as  regards  the  award  of  non-material  damages.  In 
Romania, alleged victims of gender discrimination first have to file a complaint with the employer or 
service provider before they can submit a complaint to the court or the national equality body, this is in 
contrast with alleged victims on other discrimination grounds.

653  Due to the high fluctuation of the Turkish Lira no conversion to Euro is given.
654  Critique by the German Women Lawyers’ Association, https://www.djb.de/themen/thema/ik/st20-09/. 

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Criminal  sanctions  are  also  possible  in  a  number  of  states,  but  for  different  categories  of  gender 
discrimination: 

 –

 –

 –

 –

 –

 –

 –

 –

 –

 –

 –

 –

 –

 –

 –

Discrimination  in  employment  and  in  the  access  to  goods  and  services  may  be  a  ground  for 
imprisonment in Belgium, for one month to one year.
In Denmark, violations of the protection against discrimination in employment can be sanctioned 
with  a  (criminal)  fine.  This  applies  to  gender  discrimination  in  regards  to  employment,  promotion 
and relocation, access to education, courses, upskilling and retraining, general working conditions 
including  dismissal,  access  to  carry  out  work  as  self-employed,  membership  of  trade  unions, 
employer associations, or interest associations, or advertising positions or educations, and applies 
also to legal entities.
The Finnish Penal Code prohibits discrimination at work and an aggravated form of discrimination at 
work on the basis of sex and several other grounds, including family relations, in relation to access 
to employment and at work. The penalty for the former crime is a fine or a maximum of six months 
of imprisonment, and for the latter a fine or a maximum of two years of imprisonment.
Under the French Labour Code the employer risks a maximum of one year of imprisonment and a 
fine of EUR 3 750 and under the Criminal Code any discrimination can be punished with a maximum 
of three years of imprisonment and a fine of EUR 45 000. But these sanctions are rarely used.
In  Cyprus,  anyone  who  intentionally  contravenes  the  provisions  on  the  prohibition  of  pay 
discrimination shall be guilty of an offence and be punished with a fine not exceeding EUR 6 860 or 
by imprisonment not exceeding six months or with both such penalties. Furthermore, anyone who 
violates the provisions on gender discrimination, in the event of conviction with a fine not exceeding 
EUR 7 000, or by imprisonment not exceeding six months or with both such penalties.
In  Croatia,  sexual  harassment  provides  a  ground  for  a  penal  sanction,  if  committed  against 
a  subordinate  person  or  other  person  dependent  on  the  offender,  or  a  person  who  is  especially 
vulnerable  due  to  age,  illness,  disability,  dependency,  pregnancy,  or  severe  physical  or  mental 
impairment, involving imprisonment for up to two years.
In Greece, an ‘offence to sexual dignity’ can lead to imprisonment up to three years and a pecuniary 
penalty,  if  it  is  committed  through  the  exploitation  of  the  situation  of  a  worker  or  candidate  for 
employment.  An  ‘abuse  to  a  sexual  act’  committed  through  the  same  circumstances  can  lead  to 
imprisonment of at least two years.
In  Turkey,  criminal  sanctions  can  be  imposed  for  crimes  against  sexual  inviolability,  including 
harassment  and  sexual  assault,  and  involve  imprisonment  of  varying  duration  according  to  the 
gravity of the crime, ranging from three months to 12 years and even longer.
In Lithuania, serious discrimination on the grounds of inter alia sex shall be punishable by community 
service order, arrest or imprisonment for up to three years, but there have been no cases so far.
In Serbia, violation of equality law generally may lead to imprisonment for three months to five 
years.
In Malta, a fine or imprisonment for up to six months or both is possible in case of victimisation and 
(sexual) harassment.
In Poland, imprisonment for up to two years is possible in the case of very serious and notorious 
violations of employees’ rights, as well as fines and restrictions to the convicted person’s liberty and 
up to three years of imprisonment is possible in the most serious cases of sexual harassment.
In Austria as well severe sexual harassment is seen as a criminal offence carrying the threat of 
punishment of up to six months of imprisonment or a criminal fine.
In North Macedonia, where a breach of equality law passes the threshold to be considered a crime, 
it can lead to a penal sanction/imprisonment. 
In  Norway,  sexual  harassment  and  harassment  may  both  constitute  crimes,  depending  on  the 
particular harassment. Sexual harassment in the form of sexual acts and sexual conduct without 
consent (other than rape and attempted rape) carries up to a one-year prison sentence. However, 
there are large differences between the harassment, the penalties and what is actually interpreted 
as  punishment  in  the  courts.  Bullying  and  harassment  expressed  in  physical  violence  are  crimes, 
as are threats. The harassment does not have to be linked to a discrimination ground and can be 

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 –

 –

punished with a fine or imprisonment of up to 2 years. Hate speech is regarded a crime when its 
linked to skin colour, ethnicity, religion and sexual orientation and gender identity/gender expression, 
but not when it comes to sex/gender. Similar provisions exist in Sweden.
In Portugal, criminal-law sanctions can concern all discrimination grounds, in both private and public 
employment, but can only consist of penalties.
The decriminalisation provided by Italian Decree No. 8 of 15 January 2016 involved changes in the 
sanctions for the infringement of the ban on gender discrimination in the working relationship: minor 
criminal sanctions (a fine from EUR 250 to EUR 1 500) have now been substituted by administrative 
monetary sanctions from EUR 5 000 to EUR 10 000. The change concerns all cases of discrimination 
covered by the Code of Equal Opportunities, i.e. all sectors, both public and private and all aspects 
of the working relationship.

(ii)	

Persisting	problems

Importantly, quite a lot of the experts believe that their national laws do not (fully) comply with the general 
EU standard of effective, proportionate and dissuasive sanctions (Bulgaria, Finland, Hungary, Latvia, 
Montenegro, Netherlands, North Macedonia, Poland, Romania, Serbia, Slovakia) or observe that 
serious problems persist in this regard (Czechia, Estonia, Germany, Spain, Sweden). In Greece, the 
sanctions are effective, proportionate and dissuasive, but their use is limited as procedural and socio-
economic problems deter recourse to legal proceedings (see the next section).

One significant, more common problem concerns the (fixed and/or low) level of compensation and damages 
and  also,  in  some  countries,  the  way  these  are  applied  by  the  courts  (Austria,  Belgium,  Bulgaria, 
Croatia,  Czechia,  Denmark,  Estonia,  Finland,  Hungary,  Latvia,  Lithuania,  Malta,  Montenegro, 
Netherlands,  Poland,  Romania,  Serbia,  Spain).  These  sanctions  are  not  considered  to  meet  the 
requirement of dissuasiveness and are also not considered to be appropriately balanced with the costs, 
length and uncertainty of judicial proceedings. 

Although in Czechia an offence in the area of equal treatment may be sanctioned with a fine of up to 
EUR 37 040, labour inspectorates have never imposed such a high fine. In 2018, they imposed some 21 
fines, amounting in total to a mere EUR 21 540 (approx. EUR 1000 each). The Spanish expert considers 
the remedies and sanctions to be proportionate in theory, but in practice moral damages are difficult to 
prove and when they are recognised by the courts, quite low sums are awarded. Furthermore, certain 
sanctions  can  only  be  imposed  by  the  labour  inspectorate,  which  does  not  always  consider  gender 
discrimination a priority. Similarly, in Serbia anti-discrimination proceedings are not treated as urgent 
in practice and sanctions imposed for moral damages have ranged from EUR 40 to EUR 830, which is 
only symbolic when compared to some other laws. Even in severe cases of discrimination courts have 
only imposed the smallest amounts and the execution of court decisions has been problematic as well. In 
Croatia, while the legislative framework regarding the remedies and sanctions is satisfactory overall, the 
courts in labour disputes do not always award any damages, even where it is established that a worker 
was harassed, because they find that the circumstances do not justify the award of damages.655

In Hungary, in 2015, the amount of fines applied by the Equal Treatment Authority (ETA) were extremely 
low: only EUR 310 in two employment discrimination cases, in which a camerawoman’s and a driver’s 
employment application were refused because of their sex. In 2016 the amount of the fines imposed 
increased considerably, but the figure is still far below the maximum applicable amount (EUR 1 5003 000 
compared to the statutory maximum of EUR 20 000). The amount continued to increase in the following 
years. Higher fines were mainly imposed in cases where pregnant women were dismissed during their 
trial period. In a recent case, the Equal Treatment Authority established direct discrimination based on 
pregnancy and ordered the employer to cease the discriminatory practice, to pay a fine of EUR 4 160, and 

655  See Zagreb County Court, Gž R-931/2018. Even in cases where damages are awarded, the amount is much lower than in 

comparable cases of, e.g., compensation for emotional pain or reduced working capacity arising from a car accident injury.

185

for the decision to be published on the authority’s website for 30 days.656 The Equal Treatment Authority 
reviewed the income of the company and imposed this (rather high) fine to deter the company from such 
discriminatory practice in the future.

In a recent case in the Netherlands, the District Court of Limburg657 decided that an employee whose 
contract had not been extended because of her pregnancy was not entitled to compensation for material 
(income) damage, because it was likely, according to the court, that the contract would only have been 
extended one more time for one year and would have ended afterwards. During that year, the employee 
had also received a social security benefit and therefore she had suffered no loss of income. The court 
furthermore granted compensation for non-pecuniary damage of only EUR 1 000, which does not meet 
the requirement of an effective, proportionate and dissuasive sanction.

In Lithuania, the Equal Opportunities Ombudsperson and the courts are rather reluctant to impose severe 
sanctions for breaches of equality legislation. In Finland, it is deemed problematic that the compensation 
may  be  reduced  or  removed  altogether  if  considered  reasonable,  taking  into  account  the  economic 
circumstances  of  the  violator,  their  attempts  to  prevent  harmful  effects  caused  by  the  act,  or  other 
circumstances. The Swedish expert has noted the specific restriction applying to economic compensation 
in relation to appointments and promotions, which rules out the possibility in these cases of indemnities 
in addition to ‘discrimination compensation’. This restriction, which is a result of the Swedish ‘hiring at 
will’ doctrine, can possibly be questioned in the light of the principle of equal access to employment and 
its effective implementation. 

In Ireland, compensation can only be awarded on the basis of one discrimination ground even if more 
grounds are at issue in a particular case and it is doubtful whether ‘real and effective compensation’ is 
available, given that awards are capped even where there is discrimination on more than one ground. In 
Norway, redress and compensation seem to be low in a case from 2019 concerning sexual harassment 
from  Hålogaland  Court  of  Appeal,  with  damages  set  at  NOK  36  387  (EUR  4  000)  and  the  redress/
compensation set at NOK 20 000 (EUR 2 200). The case was later appealed to the Supreme Court, which 
set the compensation amount to NOK 20 000. However, not many cases of sexual harassment have yet 
come before the Norwegian courts.

In Romania, while administrative sanctions may range between EUR 680 and EUR 22 720, the national 
equality body stays close to the minimum level and, when awarded by the courts, moral damages are very 
low rendering the sanction ineffective. In Turkey, ‘discrimination compensation’ is limited to a maximum 
of four months’ wages under Employment Act Article 5. In Malta, fines/compensation amount to no more 
than EUR 2 329.27, which is generally considered to be too low to provide a deterrent. Although the level 
of compensation in Poland is not capped, the usual awards given in practice are considered unlikely to 
have a dissuasive effect. 

The North Macedonian expert has noted that, while the Labour Inspectorate is now authorised to issue 
administrative fines without a court procedure, the amounts of the administrative fines that can be imposed 
have been reduced significantly. For example, a previous EUR 400 fine now limited to EUR 70.658 The Italian 
expert deems the decriminalisation provided by Decree No. 8 of 15 January 2016 a retrograde step in the 
effectiveness  of  sanctions,  even  though  it  aims  to  reduce  the  workload  of  the  criminal  courts.  Although 
the new sanctions are harsher than the previous ones, they have lost both the greater deterrent effect of 
criminal sanctions and the enforceability of the special procedure of Article 15 of Decree No. 124/2004, 
which allowed the employer to avoid a criminal trial by the restoration of a lawful condition (i.e. halting the 
unlawful situation, if possible) and the payment of a quarter of the maximum fine.

656  Equal Treatment Authority (Egyenlő Bánásmód Hatóság) Decision No. EBH/HJF/209/27/2020.
657  Netherlands, District Court Limburg, 13 December 2017, ECLI:NL:RBLIM:2017:12124.
658  The change to this law was effected in a short procedure, without any discussion (in a plenary session or in a 

session of the Commission on Equal Opportunities of Women and Men), http://www.sobranie.mk/materialdetails.
nspx?materialId=c88da9f4-f206-491a-aa81-714494a882bd.

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Other problems concern, for instance, the freezing effect of the old, inflexible case law of the Belgian 
Court of Cassation which means that no court would dare to order the reinstatement of a worker under an 
employment contract. In Germany, when discrimination results from collective agreements, the employer 
is only responsible if they acted with gross negligence or intentionally. Furthermore, the employer as well 
as a person providing goods and services are obliged to pay material damages only when they can be 
held responsible for the discrimination by personal fault. These conditions hamper enforcement and there 
is also the problem that the compensation granted for personal harm is very modest. 

In  North  Macedonia,  the  weak  court  system  and  ineffectiveness  of  the  gender  equality  legal 
representative of the Ministry of Labour and Social Policy and the Anti-discrimination Commission are 
seen as particularly problematic. In Iceland, despite the burden of proof lying with the employer, it is still 
difficult for the claimant to gather enough evidence to bring a case before the complaints committee. 
The clause permitting workers to disclose their wage terms is anything but a guarantee of transparency. 
Rather to the contrary, it may be seen as a scapegoat for not fixing the problem. 

In Norway, as of January 2018, the Equality and Anti-discrimination Ombud no longer treat complaints; 
rather, the Equality and Anti-discrimination Tribunal is now in charge of this. However, the Ombud’s role 
in  promoting  equality  has  been  strengthened,  with  her  task  being  to  provide  guidance  on  matters  of 
equality and discrimination to anyone who turns to her, including individuals. Another important task of 
the Ombud is to follow up the duty of public and private employers to promote equality, and report on 
equality and non-discrimination. According to the Act on the Equality and Anti-discrimination Ombud and 
the Equality and Anti-discrimination Tribunal (EAOA), only the Tribunal has an albeit limited authority to 
award  damages  in  employment  relationships  and  to  award  compensation  for  economic  loss  in  cases 
where  the  defendant  has  no  objections  to  the  claim  for  compensation,  or  the  Tribunal  finds  reasons 
to  dismiss  the  defendant’s  objections.  This  limited  authority  means  that  many  cases  concerning  sex 
discrimination must still be taken to court to be awarded compensation and redress.

The Montenegrin expert has pointed to more general issues, such as slow responses from state bodies 
and other respondents, the complex bureaucracy and psychological barriers, as being problematic. 

10.5	 Access	to	courts

Another issue that is of prime importance for ensuring effective compliance with and enforcement of EU 
gender equality law concerns adequate access to courts for alleged victims of sex discrimination. Member 
States have the obligation to ensure that judicial procedures are available to everyone who considers that 
they have been wronged by a failure to apply the principle of equal treatment to them, even after the 
relationship in which the discrimination is alleged to have occurred has ended. According to the CJEU’s 
case law, national courts must provide effective judicial protection and access to the judicial process must 
be guaranteed (e.g. Article 17(1) of Directive 2006/54/EC).659 In this respect as well significant problems 
and obstacles persist in the states covered by this report, which may not always be legal barriers.

(iii)	

Low	level	of	litigation	and	explanatory	factors

While access to courts as such is ensured in all states, a widespread general problem remains that overall 
the level of gender equality litigation is still (very) low in many states. In addition to the low levels of 
compensation that may act as a deterrent to engaging in judicial proceedings (see the previous section), 
the most often reported difficulties and barriers encountered by victims of sex discrimination and which 
may explain the low level of litigation concern:

659  Well-established case law since CJEU, Case C-222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary 

[1986] ECR I-01651. 

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the  cost  of  legal  proceedings  (Austria,  Belgium,  Croatia,  Estonia,  Finland,  Greece,  Iceland, 
Latvia,  North  Macedonia,  Norway,  Poland,  Slovakia,  United  Kingdom);  importantly,  in  the 
latter country, the Fees Order which imposed a financial burden on potential claimants was found to 
be unlawful by the Supreme Court in 2017 for contravening the right to an effective remedy under 
EU law and imposing disproportionate limitations on the enforcement of EU employment rights); in 
North Macedonia, the new anti-discrimination law of 2019 provides that no court fees will apply to 
discrimination cases, which has eased, although not fully lifted, the financial burden;
overly short time limits for initiating proceedings (Germany, United Kingdom);
length of proceedings (Czechia, Croatia, Estonia, Greece, Italy, Norway, Slovenia);
the conditions of entitlement to legal aid (Belgium, Greece, Norway);
lack  of  a  right  of  associations  to  bring  proceedings  (Austria,  Germany;  only  possible  for  works 
councils, but these have not done so as yet);
lack of trust or faith in the courts/legal system (Estonia, Italy, Montenegro, North Macedonia);
only courts being allowed to award compensation and these not necessarily recognising the equality 
body’s finding of discrimination as a basis for awarding compensation (Bulgaria, Hungary);
lack of access to information, in particular other court rulings on the matter (Croatia);
benefits ensuing from court action too minor (discussed extensively in the previous section);
‘stigma’ of being a ‘troublemaker’ associated with such cases (Croatia, Czechia, Estonia, Malta) 
and fear of retaliation or victimisation (Greece, Latvia, Liechtenstein, North Macedonia, United 
Kingdom), including legal retaliation in the form of a penal sue for slander, defamation or insult and/
or a ‘blackmail’ civil action for moral damages due to slander, defamation or insult against the victim 
and/or their witnesses or potential witnesses (Greece);
being part of a small-scale community (Estonia, Liechtenstein, Luxembourg, Malta, Montenegro);
lack of confidence of claimants that they will be believed (United Kingdom) and difficulty of proof 
(Greece, Italy, Latvia, Turkey);
lack of family support and understanding (Montenegro, Serbia);
lack of awareness and knowledge about existing equality law (Estonia, Italy, Montenegro, Serbia);
lack of experience and custom of defending own rights (Estonia);
lack of skilled, experienced advice and assistance (Greece, United Kingdom);
strongly  rooted  traditional  gender  stereotypes  which  entail  a  greater  degree  of  tolerance 
(Montenegro, Serbia);
the socio-economic crisis, ensuing high female unemployment and long-term unemployment, and 
unemployment benefits which are low and subject to strict conditions (Greece).

Among  more  specific  factors  that  have  been  highlighted  as  being  particular  causes  of  the  reluctance 
to  take  individual  legal  action  is  the  currently  often  applied  concept  of  ‘diversity’,  which  limits  gender 
to being just one of the criteria amidst many others, thereby shifting the focus of policymakers and the 
media.  In  Belgium  pay  scales  in  the  private  sector  are  governed  by  collective  agreement  and  a  pay 
discrimination claim may therefore be considered to be quite bold. 

The Hungarian expert has noted that while access to court is safeguarded by legislation, according to 
available information, gaps may be shown in the case law of lower-level courts in four areas: the broad 
interpretation of exemptions provided for in the law; the reluctance to award dissuasive compensation; 
the minimisation of the severity of violence against women; and inadequate application of the rules on 
the burden of proof. On the other hand, an amendment to the rules on non-material damages for pain and 
suffering might lead to more effective, proportionate and dissuasive sanctions in the future. 

In Norway, like in other European countries such as Iceland or example, there are significant economic 
risks linked to the costs of proceedings. The general rule on costs of proceedings in discrimination cases 
is that the successful party is entitled to full compensation for their legal costs from the opposite party. 
These costs are practical barriers for most discrimination complaints. Moreover, difficulties in obtaining 
free legal aid in discrimination cases are another factor hindering access to court. 

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A ruling by the Supreme Court of Iceland overturning a district court judgment in a sexual harassment 
case is not considered to be very encouraging in persuading victims to go to court.660 The woman in this 
case claimed non-pecuniary damages as well as unpaid wages from her employer for sexual harassment 
by her superior during a work trip. She maintained that her employer had not reacted as they should have 
in light of the seriousness of her allegations and that her working arrangements had been changed so 
that she was unable to do her job. The Supreme Court held that the behaviour of the man was ‘completely 
inappropriate’. Inviting her to join him in a hot tub where he sat naked and knocking on her door an hour 
after she had bid good night had certainly been ‘inappropriate’ while ‘more was needed’ for it to constitute 
sexual harassment. The Court furthermore held that the woman had not been able to prove that she had 
been subjected to injustice in her work after submitting her complaint. 

The current government has on its agenda an intention to strengthen the situation of victims of sexual 
violence. Under the present system, the victim is not part of the prosecutor’s case against the alleged 
offender. The police have the duty to inform the victim about their rights and whether investigation in 
the case has finished or been cancelled, as well as providing substantive reasoning for such decisions so 
that the victim can contest the decision before the state prosecutor. However, the police are not under 
any obligation to inform the victim about the process of the case, to hear the testimony of the alleged 
offender or otherwise be involved in the case.661

In  France,  a  new  justice  reform  which  groups  together  local  district  courts  (tribunal	 d’instance	 et	 de	
grande	instance) has been criticised as limiting vulnerable groups’ access to justice, since the elimination 
of lower courts (tribunal	d’instance) within communities requires travelling greater distances to get to 
court.

(iv)	

Legal	–	financial	–	aid

A particular point requiring attention concerns the legal aid that is available for alleged victims of gender 
discrimination. A divergent picture emerges here as well, especially when making a distinction between 
financial aid and legal advice or assistance (see below point (iii)).

In  some  countries  no  legal  financial  aid  is  provided  (Austria,  Lithuania,  Luxembourg,  Romania),  in 
others  this  is  income-dependent  (Belgium,  Bulgaria,  Estonia,  Finland,  France,  Greece,  Hungary, 
Iceland, Latvia, Malta, Montenegro, North Macedonia, Norway, Poland, Sweden) or only available 
for particular types of cases (Turkey) or before specific courts (Cyprus). 

In Iceland, financial aid may also be granted if the outcome of the case is likely to have great general 
significance or have a strong impact on the employment, social status or other personal status of the 
applicant. The Legal Aid Committee also examines factors such as whether the applicant has tried to 
settle the case, for example through administrative appeal, and whether there is a chance that the case 
would be successful in court, by looking at the case law of the courts. Hence in light of the Supreme 
Court’s decision mentioned above, the prospects of legal aid for alleged victims of sexual harassment are 
considered not very promising. 

In Turkey, no legal expenses can be imposed on victims of violence. Applications to the Human Rights 
and  Equality  Institution  are  free  of  charge  and  the  Institution  must  investigate  discrimination  upon 
complaint and ex officio, must impose a fine on natural persons and public/private legal entities in case 
of discrimination, and must help and guide victims concerning administrative and legal procedures. The 
decisions  of  the  Institution  must  also  specify  the  legal  means/procedures  for  the  parties  to  challenge 
its decisions. Natural persons and legal entities can file complaints of discrimination. Applications can 
be made directly to the Human Rights and Equality Institution or through governors in towns and sub-

Iceland, Supreme Court case No. 267/2011.

660 
661  https://kjarninn.is/frettir/2019-06-20-baeta-aetti-rettarstodu-brotathola-i-kynferdisbrotamalum/. 

189

governors in sub-towns. In Hungary, legal aid providers must give recipients of legal aid legal advice or 
prepare submissions or other papers for them, and (if so authorised) inspect the documents relating to 
their case, and the State must pay or advance the legal aid providers for the relevant costs and fees. 
However,  claimants  may  have  to  pay  lawyers’  fees  if  they  lose  the  case.  In  Montenegro,  victims  of 
gender discrimination usually receive free legal aid from NGOs in the form of information, legal advice 
and representation. In Poland, a claimant can also request the court to assign a legal representative to 
defend their case. In North Macedonia, the new Law on Free Legal Aid (FLAL) adopted in 2019 replaced 
the heavily criticised FLAL from 2009, ensuring that any person, regardless of citizenship, can now apply 
for free legal aid, as long as they satisfy the criteria that they are not in a material position to cover the 
expenses of the process. 

In the Netherlands, free legal aid for people with low incomes has been restricted in recent years as part 
of austerity measures. In Portugal, victims of discrimination have free access to the courts and in case 
of economic difficulties the individual has the right to a public attorney for this purpose and does not have 
to pay the costs of the proceedings. 

In  Serbia,  the  Law  on  Free  Legal  Aid  adopted  in  2019,  which  entered  into  force  on  1  October  2019, 
provides for free legal aid for victims of discrimination. However, the problem is that it is still unclear how 
this law applies in practice. Victims can also submit a complaint to the Commissioner for Protection of 
Equality, which is free of charge, as is the entire procedure. In Sweden, victims of sex discrimination in all 
contexts can be represented by the Equality Ombudsman without any costs. But the Ombudsman is free 
to choose which cases are taken to court and the number of cases brought is very limited (25 in 2014) in 
relation to the number of complaints (1 949 of which 224 were more closely scrutinised). At first hand, 
in discrimination cases, employees are represented by their trade unions, which provide legal assistance 
free of charge.

In the United Kingdom, legal aid may be available in the county court and for judicial review applications 
in the high court, but the limitations on cases in which such aid is available, the very low income thresholds 
below which it is available and the restrictions on legal aid in public law challenges are such that it is of 
extremely limited assistance to prospective claimants. In Greece, legal aid is also subject to the condition 
that the remedy is admissible and not manifestly ill-founded. Victims of offences against sexual freedom 
or abuse of sexual life for financial benefit and victims of domestic violence who lodge penal complaints 
are exempted from litigation costs, without any conditions. 

In  Austria,  statutory  corporations  for  employees  and  the  trade  unions  offer  free  legal  consultations 
in labour and social security law and in urgent cases they provide free representation for all levels of 
jurisdiction for their members. However, there are no provisions that would permit NGOs to act by proxy, 
with few exceptions. Claimants can also file a petition to the relevant court for financial aid concerning 
court fees, which may also include legal representation by an attorney. This can be granted if the claimant 
meets  certain  financial  criteria  and  the  claim  poses  legal  difficulties  in  its  pursuit.  Nonetheless,  the 
claimant still needs to cover certain costs in case of a loss at court, which means that a financial risk 
remains, even if legal aid is granted. This makes court proceedings especially unappealing for people with 
low or no income. Moreover, the benefits of winning a case often do not compensate for such a risk, since 
courts traditionally have been hesitant to grant large amounts of damages. 

(v)	

Action	by	proxy	of	interest	groups,	equality	bodies	and	social	partners

When it comes to access to courts for anti-discrimination/gender equality interest groups or other legal 
entities that can act on behalf of or represent alleged victims of sex discrimination, this is provided for 
in  quite  a  number  of  countries  (Austria,  Belgium,  Bulgaria,  Croatia,  Cyprus,  Czechia,  Denmark, 
Estonia, France, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, 
Montenegro,  Netherlands,  Norway,  Portugal,  Serbia,  Spain,  Sweden).  However,  in  Greece  the 
relevant  provisions  are  incorrectly  worded  (regarding  the  pre-requisites  of  recourse  to  courts  by  legal 

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entities) and in any case not widely known and not often applied, as they have not been incorporated into 
the procedural codes. The ground acted upon may not always be gender discrimination, but e.g. protection 
of consumer rights (as was the case for Test-Achats) or simply trade unions providing legal assistance 
generally to their members (Belgium). This may be beneficial to the extent that they also bear the costs. 
However, the following brief overview reveals quite a number of limitations of the applicable national 
regulations for actions by proxy. 

In Austria, such action is generally limited to the so-called ‘Klagsverband’, an umbrella organisation of 
several non-governmental organisations acting in the field of anti-discrimination. Social partners can also, 
under certain circumstances, represent victims of discrimination before the Labour and Social Courts. In 
Portugal, in the field of discrimination these actions are allowed in all cases where a collective interest 
regarding the promotion of equality is recognised to the entity that initiates the proceedings. In addition, 
collective representatives of a victim of discrimination (e.g. trade unions) can promote judicial actions on 
the victim’s behalf or assist the victim in those actions. In France, trade unions have the right to act on 
behalf of an alleged victim of discrimination without being mandated as such, whereas other associations 
need the written consent of the claimant. 

In Spain, in theory, there are many mechanisms for intervention by interest groups and legal entities for 
the defence of victims of discrimination. However, these actions are quite rare and most cases of gender 
discrimination submitted to the courts are pursued by individual victims. In Serbia, trade unions may also 
initiate proceedings in case of discrimination of larger groups of people or on behalf of individuals giving 
their consent. 

In Denmark, Finland and Italy trade unions can bring cases as well and in Bulgaria and Sweden both 
trade unions and other non-profit organisations may bring discrimination cases to court, but with trade 
unions having a priority right to do so. The Gender Equality and Equal Treatment Commissioner in Estonia 
is calling for the right to go to court with discrimination cases, but the Ministry of Justice is opposing this 
proposal. In Greece NGOs have legal standing, but they have inadequate resources for actually bringing 
cases. In Slovakia, NGOs can represent victims only before regular courts, not the Constitutional Court. 

The Finnish Ombudsman has a mandate to assist a victim in court, but the mandate has so far never 
been used. In other countries, such entities may not be entitled to bring legal action on behalf of the 
claimant  as  they  must  bring  their  own  case  (Germany)  and  may  only  be  supported  by  counsel  or 
financially  (Finland,  Ireland,  North  Macedonia,  United  Kingdom).  In  Romania,  an  amendment  to 
gender equality law in 2012 limited the possibility for alleged victims to be represented by trade unions 
or NGOs to administrative procedures only, and not court proceedings. In Turkey, interest groups have no 
legal standing, so cannot act on behalf of a claimant, nor is there a right to start class actions. There is 
only legal standing for the Ministry of Family, Employment and Social Affairs. 

In Montenegro, an organisation engaged in the protection of fundamental rights may bring proceedings, 
but  only  with  the  consent  of  the  person  discriminated  against.  Likewise,  in  Malta  legal  entities  with 
a ‘legitimate interest’ may engage themselves on behalf or in support of a complainant in all judicial 
proceedings, with the complainant’s approval. Polish law rules out the possibility of group proceedings in 
claims against employers, but it allows trade unions, NGOs and the Human Rights Defender to initiate a 
case on a claimant’s behalf, provided they have the consent of the claimant.

10.6	 Equality	bodies

Since  2002,  by  virtue  of  Directive  2002/73/EC,  the  Member  States  and  EEA  countries  have  also  been 
obliged to designate equality bodies. The tasks of these bodies are the promotion, analysis, monitoring 
and support of equal treatment of everyone without discrimination on grounds of sex. They may form 
part of agencies with responsibilities at the national level for defending human rights or safeguarding 

191

individual rights. These bodies must have the competence to provide independent assistance to victims 
of  gender  discrimination,  to  conduct  independent  surveys  concerning  gender  discrimination  and  to 
publish independent reports and make recommendations (Article 20 of Recast Directive 2006/54/EC and 
Article 12 of Directive 2004/113/EC).662

All  states  have  put  an  equality  body  into  place  that  seeks  to  implement  the  requirements  of  EU  and 
national gender equality law, including Turkey as of very recently. However, these bodies differ in terms 
of purpose, competence and the discrimination grounds they can deal with. In some countries, there are 
specific bodies limited to dealing with gender equality issues (Belgium, Croatia, Cyprus, Iceland, Italy), 
whereas in most countries they can also act in defence of non-discrimination on other grounds (Albania, 
Austria, Bulgaria, Czechia, Denmark, Estonia, Finland (the Equality and Non-Discrimination Board, 
although the Equality Ombudsman has a mandate on the ground of gender), France, Greece, Germany, 
Hungary, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Montenegro, Netherlands, 
North Macedonia, Norway, Poland, Serbia, Slovakia, Slovenia, Spain, Sweden, United Kingdom). 
Romania has both types of bodies. 

These bodies may just have an informative and/or research function (e.g. Germany, Luxembourg) or 
they  may  also  investigate  complaints,  give  legal  advice  and  assistance,  issue  (non-binding)  opinions, 
recommendations and warnings, try to obtain out-of-court settlements, bring cases to court, etc. (Albania, 
Estonia,  Finland,  Greece  (no  recourse  to  courts),  Hungary,  Iceland,  Ireland,  Italy,  Lithuania, 
Montenegro,  Norway,  Poland  (no  recourse  to  courts  against  private  actors),  Serbia,  Slovakia, 
Sweden). Some equality bodies may also issue fines (Cyprus, Hungary, Iceland, Lithuania) or impose 
sanctions (Bulgaria, Denmark). 

In Denmark, the Board of Equal Treatment663 is a first instance complaints mechanism that assesses 
individual complaints of all aspects of equal treatment and non-discrimination, both in employment and 
in  general  society.  Access  is  free,  and  the  format  is  an  easy  on-line  complaints  form.  Also,  the  Board 
assesses complaints of a general nature submitted by the Institute of Human Rights. The secretariat of 
the Board of Equal Treatment conducts complaints-based ex	officio investigations, the board members 
decide the cases on the basis of all the available statements and documentation. The Board of Equal 
Treatment may issue sanctions, i.e. payment of compensations in situations of violations. The rulings of 
the Board of Equal Treatment are publicly available.664 The Board of Equal Treatment rules on hundreds 
of complaints every year. One of the parties may decide to have a ruling re-assessed in the ordinary court 
system.

In  Norway,  the  mandate  of  the  equality  bodies  was  changed  in  2018,  with  the  Equality  Ombud  now 
no longer functioning as a first instance complaints mechanism, but rather providing advice to victims 
of discrimination and others. The Equality Tribunal, the only equality body in Norway that investigates 
complaints, was given power to give redress for breaches of the act (as of 1 January 2018), as well as 
giving the Equality Tribunal the authority to assess cases of sexual harassment. In 2019 the Equality 
Tribunal awarded compensation for the first time, and has done so in more cases since then.

The Irish Human Rights and Equality Commission can invite a company or group of companies to carry 
out an equality review or to prepare and implement an equality action plan. In Hungary, the tasks and 
competences of the Equal Treatment Authority, which included conducting complaint-based and ex	officio 
investigations,  deciding  on  violations  of  equal  treatment  and,  if  necessary,  applying  sanctions  on  the 
basis of the investigation, were transferred to the Commissioner for Fundamental Rights as of 1 January 

662  On equality bodies in general see Holtmaat, R. Catalyst for change: Equality bodies according to Directive 2000/43/EC 2007, 

available at: https://www.equalitylaw.eu/downloads/1199-catalysts-for-change-en.

663  Statutory Act on the Board of Equal Treatment, act no 1230 of 2 October 2016.
664  Database and search form of rulings from the Board of Equal Treatment: https://ast.dk/naevn/ligebehandlingsnaevnet/

afgorelser/afgorelser-fra-ligebehandlingsnaevnet. 

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2021.665 This raises concerns, as while the Equal Treatment Authority had a single focus and mandate 
(dealing with non-discrimination issues), the Parliamentary Commissioner’s Office is a large organisation, 
mandated with a wide range of tasks, which might lead to less attention being paid to the issue of non-
discrimination.666 

The situation in North Macedonia is rather opaque, as the law also provides for a special state agent 
to  act  as  a  gender  equality  body,  but  seemingly  without  having  independent  powers  of  investigation, 
monitoring and reporting. No information is available regarding its actual functioning. The Ombudsperson 
can  also  protect  people  from  sex  and  gender  discrimination,  for  example  by  representing  groups  of 
victims  of  discrimination  in  court.  The  Commission  for  Protection  against  Discrimination  (the  multi-
mandate equality body) is also competent to act in cases of sex and gender discrimination in both the 
public and the private sector. Like the Ombudsperson, it also has monitoring and reporting competences, 
including on these two grounds. However, neither the Ombudsperson nor the Commission for Protection 
against Discrimination provide visibility for gender equality in their mandate. Moreover, a 2019 analysis 
of the implementation of the Gender Equality Law found that a legal representative is not recognised as a 
mechanism for protection. It raises doubts with regard to the position and efficiency of the representative 
and proposes that the position be removed.667

The Croatian expert has noted that many victims feel more confident complaining to the Ombudsperson 
for Gender Equality in out-of-court, less formal proceedings at no cost than when going to court. The 
same applies in Greece where the Ombudsperson investigates 300-400 individual complaints annually. 
Similarly, in Portugal the difference between the reduced number of actions brought before the courts 
and the intense work of the national equality body (CITE) gives grounds for concluding that the more 
effective  action  regarding  practical  implementation  takes  place  outside  the  courts.  Alleged  victims  of 
discrimination also have the right to seek advice and to report discriminatory practices to both CITE and 
the Labour Inspection Services. 

The Polish expert has also observed that practice shows that often more can be achieved through direct 
contacts between the Labour Inspectorate and the employer than by going to court, referring to a wide 
investigation  involving  581  companies  regarding  the  dismissals  of  people  returning  from  maternity, 
paternity and parental leave and the observance of other employee rights. Turkey has put into place 
the  Human  Rights  and  Equality  Institution  based  on  a  new  Act  that  entered  into  force  in  April  2016, 
through which two gaps in relation to gender equality were closed: the lack of a specific law on non-
discrimination and the lack of an equality body. Turkey also has an Ombudsman institution, and one of 
the five Ombudspersons is responsible for women and children. It can try to settle complaints but also 
seek to obtain a judicial settlement if need be, in which case the judge will consider the (non-binding) 
report of the Ombudsperson. 

The French Defender of Rights body can also help victims to make a case against agents of discrimination 
and, thanks to special powers, can carry out an investigation and demand explanations from defendants, 
by conducting hearings and collecting other evidence, including the gathering of information on site. It can 
issue recommendations and publish them, thus encouraging the defendant to comply. Another noteworthy 
development concerns the establishment of Anti-discrimination Bureaux (ADVs) in the Netherlands; all 

665  Hungary, Act CXXVII of 2020 on the Amendment of Certain Laws with the Aim of Enhancing the Enforcement of the 
requirement of Equal Treatment (2020. évi CXXVII. törvény egyes törvényeknek az egyenlő bánásmód követelménye 
hatékonyabb érvényesítését biztosító módosításáról) 1 December 2020. For more about this development in English, see: 
https://www.equalitylaw.eu/downloads/5345-hungary-legislation-adopted-abolishing-the-equal-treatment-authority-
and-transferring-its-tasks-to-the-ombudsman-126-kb.

666  For more about this development in English, see: https://www.equalitylaw.eu/downloads/5345-hungary-legislation-

adopted-abolishing-the-equal-treatment-authority-and-transferring-its-tasks-to-the-ombudsman-126-kb.

667  Chalovska-Dimovska, N. (2019), Извештај за проценката на имплементацијата на Законот за еднакви можности на 

жените и мажите на централно ниво (Assessment report regarding the implementation of the Law on Equal opportunities for 
Women and Men at the central level), OSCE – Mission to Skopje and Ministry of Labour and Social Policy, available at: http://
www.mtsp.gov.mk/rodova-ramnopravnost.nspx.

193

municipalities are obliged to establish and subsidise an ADV, the main task of these Bureaux being to 
assist victims of discrimination and to monitor the situation in this regard. While the Estonian Gender 
Equality and Equal Treatment Commissioner receives more complaints every year, its resources are scant. 

In Montenegro, the Ombudsman was given the role of monitoring discrimination cases processed before 
various enforcement bodies. Apart from shortcomings in human and financial resources, the Ombudsman 
has reported that its work is made more difficult due to the lack of case records relating to discrimination. 
Although the Law on Prohibition of Discrimination is clear and imperative, the bylaws and regulations to 
this Act are entirely vague and ambiguous, which has also already been reported by the Ombudsman, as 
has the inconsistency and inaccuracy of the Rulebook on the Content and Manner of Keeping Separate 
Records  on  Cases  of  Reported  Discrimination,668  which  is  supposed  to  provide  for  the  establishment 
of  special  records  in  the  form  of  an  electronic  database,  enabling  immediate  access  to  data  to  the 
Ombudsman.669 

In Spain, the Institute of Women and for Equal Opportunities is not an independent body but is part of 
the Government and while Spanish legislation establishes a wide range of competences for the Institute 
in combating discrimination, it does not have a proactive role in exercising them. 

In  Sweden,  after  calls  from  the  Equality  Ombudsman  for  an  increased  mandate  to  impose  sanctions 
against employers and educational providers who do not comply with the obligation to conduct pay audits 
and other active preventive measures. The matter is currently subject to a discussion regarding legislative 
changes, and has so far been investigated and analysed in a Governmental report delivered in December 
2020. The government appointed a Committee in 2018 to investigate and analyse the need for more 
efficient sanctions in this area. The committee was to deliver its report in October 2021.

10.7	 Social	partners	

Increasingly, the social partners, alongside NGOs and other stakeholders, are also called upon to play 
a part in the realisation of gender equality. Member States and the EEA countries have the obligation 
to promote social dialogue between the social partners with a view to fostering equal treatment. This 
dialogue may include the monitoring of gender equality practices at the workplace, promoting flexible 
working  arrangements,  with  the  aim  of  facilitating  the  reconciliation  of  work  and  private  life,  as  well 
as the monitoring of collective agreements, codes of conduct, research or exchange of experience and 
good practice in the area of gender equality. Similarly, the states are required to encourage employers 
to  promote  equal  treatment  in  a  planned  and  systematic  way  and  to  provide,  at  appropriate  regular 
intervals, employees and/or their representatives with appropriate information on equal treatment. Such 
information  may  include  an  overview  of  the  proportion  of  men  and  women  at  different  levels  of  the 
organisation, their pay and pay differentials, and possible measures to improve the situation in cooperation 
with employees’ representatives (Articles 21 and 22 of Recast Directive 2006/54/EC and Article 11 of 
Directive 2004/113/EC). 

However, it appears that in some countries social partners do not play any particular role of significance in 
this regard (Bulgaria, Czechia, Estonia, Latvia, Lithuania, Luxembourg, Romania, Slovakia, Turkey, 
United Kingdom) or it is unclear what the results are (Iceland, Italy, North Macedonia, Malta). 

In other countries, social partners fulfil more visible roles in the development and promotion of gender 
equality law, by:

giving opinions (Austria, Belgium, Croatia, Sweden), also in court cases (Poland, Sweden);

 –
 – monitoring the application by employers of labour provisions (Poland, Sweden);

668  Official Gazette of Montenegro No. 50/2014.
669  Official Gazette of Montenegro No. 50/2014, p. 135.

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 –

 –

 –
 –

 –

 –

 –

initiating legal action, including assistance of trade union members in individual cases (Belgium, 
Denmark,  Finland,  Greece  (however  the  provisions  on  this  locus	 standi,  provided  by  the  laws 
transposing the Gender Equality Directives, have not yet been incorporated in the procedural codes 
and are not widely known and applied), Hungary, Poland, Sweden) or intervening in labour law 
disputes in favour of litigants (Greece);
stimulating discussion on certain issues, such as equal pay and positive action (Denmark, Greece, 
Netherlands, Sweden);
engaging with equality bodies (Croatia, Liechtenstein);
representatives  of  social  partners  being  statutory  members  of  the  national  equal  treatment 
commission or body (Italy) and the right to co-decide on the commission’s opinion (Austria);
there being a legal obligation to present and discuss new legislation with the social partners, and 
the breach of this stipulation making it unconstitutional and therefore not applicable (Portugal) or 
there being a tradition to involve social partners in such discussion (Croatia, Denmark, Norway, 
Slovenia);
in Estonia, after the national parliamentary elections in spring of 2015, the Gender Equality Council, 
an  advisory  body  of  the  Ministry  of  Social  Affairs  consisting  of  22  representatives  of  different 
organisations,  submitted  recommendations  for  the  Government  to  promote  gender  equality  in  
2015-2018, sending them to all parties represented in the new Parliament;670
collective agreements (see Section 10.7).

In some other countries, the role of social partners in this area is quite strong. In France, there has been 
a long tradition of involving the social partners mainly through the obligation to negotiate annually on 
equality and the gender gap. Since 2012, sanctions can be imposed on companies that do not respect 
their obligation to negotiate and to conclude agreements on gender equality. In Ireland, both employers’ 
bodies  and  trade  unions  have  been  considered  effective  in  implementing  equality  legislation,  without 
there  being  legislative  provisions  on  this.  In  Cyprus,  the  social  partners  play  an  important  role  in  the 
application of gender equality law through the Labour Advisory Body. In Serbia, the Confederation of 
Autonomous  Trade  Unions  has  had  a  specific  Women’s  Section  since  2002,  which  takes  a  variety  of 
initiatives to combat gender discrimination and to reinforce women’s rights and protection of maternity. 
Interestingly,  Serbian  law  also  provides  that  in  collective  negotiations,  trade  unions  and  employers’ 
organisations should make an effort to ensure that 30 % of the representatives of the least represented 
sex are included in the negotiation committees. 

In Greece, large trade unions have special Secretariats for Women/Equality; however, possibilities for the 
unions to bring discrimination cases to court is limited by the inadequate transposition of the relevant EU 
law provisions and the non-incorporation of the relevant national provisions into the procedural codes. In 
Finland, trade unions can also bring cases to the Labour Court and to the Equality and Non-Discrimination 
Board and the social partners are influential in proposing and drafting legislation regarding all issues of 
working life, including all gender equality law. The social partners traditionally also have joint discussions 
on gender equality issues.

In  Sweden,  the  labour  market  is  characterised  by  a  high  level  of  organisational  involvement,  both  at 
the employers’ and the employees’ level, with about 75 % of workers being affiliated to a trade union. 
The role played by the social partners is crucial to non-discrimination law. The Discrimination Act thus 
requires the employer to cooperate with  trade  unions on active measures  to  bring  about  equal  rights 
and opportunities and to combat discrimination in working life. The Act also states that a trade union to 
whom the employer is bound by collective agreement has the right to obtain necessary information to 

670  The recommendations prioritised five objectives: 1) reducing the negative impact of gender stereotypes in everyday life 

and on the decisions of women and men and on the development of economy and society; 2) supporting equal economic 
independence for women and men; 3) increasing gender balance at all levels of management and decision-making; 
4) increasing the quality of life for both women and men; and 5) supporting systematic and effective implementation of 
gender mainstreaming. In 2016, the Council also gave its comments to the draft Welfare Development Plan 2016-2023 
which includes the Government’s gender equality policy priorities and also reflects the Council’s previous proposals.

195

collaborate on the monitoring of wage statistics and pay equality. Trade unions and employers are aware 
of the risk of wage discrimination when negotiating wages, and most trade unions have particular policies 
to come to terms with and prevent an augmentation of the gender pay gap. Moreover, the trade union has 
a priority right to bring an action on behalf of its members (in fact many discrimination cases brought 
before court are brought by trade unions). Social partners also play a predominant role in the Danish 
labour market. Most employment law cases brought before the ordinary courts are brought by a trade 
union on behalf of a member and, if a claim is based on a collective agreement, the social partners are 
the only parties who can enforce it. The social partners consult with government on any amendments to 
existing legislation in the area of equality law, as well as on new initiatives. The recent implementation 
agreement of changes to the Act on Maternity and Parental Leave is illustrative of this role. Members 
of trade unions or employer organisations are supported in disputes concerning equal treatment in all 
aspects of employment. Although in Portugal all legal provisions concerning labour law are discussed 
with the social partners on a regular basis, including provisions on gender equality, gender equality is not 
traditionally considered an important issue by the social partners.

In  Spain,  there  is  a  general  obligation  for  social  partners  to  negotiate  measures  promoting  equal 
treatment  and  opportunities  for  women  and  men  in  collective  agreements.  Royal  Decree  6/2019  has 
introduced important changes in this respect, by establishing that companies with more than 50 workers 
are obliged to carry out and produce equality plans. 

10.8  Collective agreements

In an extension of the previous section, when it comes specifically to the relevance of collective agreements 
as a means to implement EU gender equality law, the national systems also show a divergent picture. 
More  generally,  collective  agreements  may  be  binding  as  a  contract  but  in  most  states  they  are  not 
generally binding for non-signatory parties unless a specific measure to that effect has been taken. 

In  some  states  collective  agreements  are  of  considerable  importance  for  the  promotion  of  equality 
(Austria, Greece, Sweden). In Sweden, collective agreements determine working conditions in general 
and especially regarding pay. Such collective agreements are legally binding for employers and members 
of the signing trade union. As pay regulation rests entirely with the social partners they are also under 
a duty to address the gender pay gap, but they have to do so only on the basis of the general ban on 
discrimination as no other specific rules apply in this regard. However, given the social partners’ autonomy 
and the strongly gender-segregated nature of the Swedish labour market, it is in fact difficult to assess 
the Swedish wage-setting system. In Austria as well, collective agreements are the basis for national 
wage policies and can also cover various workplace policies. Collective agreements have the legal status 
of binding general labour ordinances. Their personal scope applies to all enterprises and to all workers 
of the relevant sector or industry and covers the entire state territory or at least regional areas (such 
as one of the provinces). Collective bargaining parties have observed the equal pay principle for many 
years, resulting for instance in the elimination of special low wage groups for female workers. Collective 
agreements are also used to implement progressive provisions such as additional paid or unpaid parental 
leave  periods,  positive  action  measures  etc.  Portugal  shows  an  interesting  approach  regarding  the 
enforcement of the equal pay principle via collective agreements, as its Labour Code establishes that 
whenever  a  collective  agreement  or  internal  provision  of  company  regulations  restricts  a  certain  type 
of remuneration to men or to women, these stipulations are automatically applicable to employees of 
both sexes, provided they perform equal work or work of the same value. Furthermore, the Labour Code 
also provides for assessment of collective agreements on possible discriminatory clauses by the national 
equality body, just after the publication of these agreements. This has proven to be very effective, either 
because the equality body convinces the social partners to change the clause in question, or, when this 
does not happen, because the court declares the clause null and void. In Cyprus, collective agreements 
are also used as a tool to implement gender equality law, but they have no force of law In Denmark, 
collective  agreements  are  binding  for  parties  to  the  agreement  and  for  members  of  the  employer 

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organisation. Coverage is very high with 84 % of employees in Denmark working in a workplace, where 
a  collective  agreement  is  in  force.  Collective  agreements  are  the  primary  source  for  general  working 
conditions, and are almost the exclusive source for regulating pay. Pay regulation are in the hands of the 
social partners who are under a duty to adhere to the Act on Equal Pay. However, equal pay remains to 
be a disputed issue, in part due to the largely gender-segregated labour market. This issue surfaced in 
2021 as the primary reason for a long industrial conflict between nurses and their employer (the Danish 
Regions).  Collective  agreements  are  very  detailed  and  complex,  and  in  addition  increasingly  distribute 
pay  negotiations  above  a  certain  minimum  wage  level,  to  shop  level  negotiations.  This  increases  the 
lack of transparency in salary levels. Indeed gender equality in wages remains to be a complex issue in 
Denmark. In Belgium a specific collective agreement on equal pay was adopted in the past, which has 
been declared generally binding by a Royal Decree. In the Netherlands, collective agreements provide for 
supplementary, more beneficial rules than those contained in legislation regarding inter alia the right to 
childcare facilities, care leave and parental leave. Since the incorporation of the gender equality principle 
in  the  Greek  Constitution,  the  social  partners  have  often  included  gender  equality  issues  in  collective 
bargaining  and  have  gradually  eradicated  direct  discrimination  in  pay,  yet  this  has  not  been  the  case 
for indirect discrimination regarding professional classification in collective agreements. They have also 
improved maternity and parenthood protection. In Norway, eight collective agreements have been made 
nationally applicable to secure equal pay in certain sectors and all the main agreements refer to gender 
equality as a specific target.

However,  it  has  also  been  signalled  that  collective  agreements  are  not  used  as  a  (real)  means  to 
implement EU gender equality law (Bulgaria, Czechia, Estonia, Finland, Germany, Hungary, Iceland, 
Italy, Latvia, Lithuania, Luxembourg, Malta, Montenegro, Poland, Romania, Slovenia, Turkey, the 
United Kingdom), that not all collective agreements contain clauses geared towards ensuring equality 
(Liechtenstein,  North  Macedonia),  or  when  they  do  contain  some  innovative  measures,  these  may 
be merely formal without any concrete measures having been taken (France). Furthermore, collective 
agreements  may  even  contain  provisions  inciting  inequalities  based  on  sex  (Croatia,  Germany).  In 
Germany,  the  still  mostly  male-dominated  nature  of  social  partner  organisations  is  also  considered 
an obstacle for using collective agreements as an effective means to implement gender equality law. In 
Hungary, collective agreements are mainly concluded at company level and since collective agreements 
may deviate from legislation, they are not deemed a suitable means for implementing equality law. Under 
the Labour Code (adopted in 2012), collective agreements are used to reduce workers’ rights. In Finland, 
collective agreements are not used for implementing EU gender equality law, except possibly soft-law 
measures  in  the  form  of  recommendations  addressed  to  the  social  partners.  In  Greece,  since  2010, 
the  system  of  collective  agreements  has  gradually  been  dismantled  through  repeated  and  extensive 
statutory  interventions  in  collective  bargaining.  Furthermore,  the  collective  agreement  hierarchy  was 
reversed, so that enterprise-level agreements (where women’s bargaining power is weaker) prevail over 
sectoral  agreements.  To  date,  company-level  CAs  prevail  over  sectoral  CAs  only  exceptionally,  in  the 
case of enterprises which face serious financial problems and are in the procedure of bankruptcy or the 
procedure prior to it or under consolidation measures or in an out-of-court settlement. Those enterprises 
are defined by a Ministerial Decision of the Minister of Employment and Social Affairs after consultation 
of the Supreme Council of Employment. Minimum-wage fixing has also been removed from collective 
bargaining for the whole country. Minimum wages are defined by statute. In the first application of this 
law, the minimum wage was fixed in a discriminatory way on grounds of age. This was considered to 
be a breach of the European Social Charter by the European Committee of Social Rights (ECSR).671 As of 
1 February 2019, this discrimination on grounds of age has been repealed. These measures are required 
by Memoranda of Understanding as bailout conditionalities. In Slovakia, equal opportunity issues included 
in collective agreements mostly concerned the working conditions of pregnant women and employees 
taking care of young children. In Luxembourg, there is a legal obligation for social partners to refer to 
the results of the negotiations, including on the application of equality plans for women and men, but 

671  ECSR Decision on the merits of 23.05.2012, Complaint No. 66/2011, General Federation of Employees of the National 

Electric Power Corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v Greece.

197

this is not considered very effective, since social partners mostly limit themselves to observing that this 
matter has been discussed.

Sometimes, collective agreements may still contain rules violating equal treatment legislation as revealed 
by a case from the Hungarian Equal Treatment Authority. The collective agreement in this case contained 
a rule based on which the employer did not provide a voucher (a form of benefit) to the employee while 
she was on maternity leave. The ETA and the labour court established that this violated the regulations 
on equal wages and the employer was obliged by the court to pay the wage difference to the employee. 
No further sanctions were applied.672 

672  Hungary, EBH/19/2016 http://egyenlobanasmod.hu/hu/jogeset/ebh192016.

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 202111	 Overall	assessment:	law	on	the	books	versus	law	in	practice 	

The comparative analysis presented in this report of the legal state of affairs in 36 European countries 
in all fields covered by EU gender equality law shows that much has been achieved. However, it is also 
clear that many concerns remain. Despite the regulations in force in these states, it appears that in many 
countries specific problems of proper transposition and application of EU gender equality law remain in all 
areas. These concern not only substantive deficiencies of legislation and its application by national courts, 
but  also  the  ‘patchwork’  nature  of  applicable  national  laws,  which  affects  the  clarity  and  consistency 
of the overall body of national gender equality law. Some experts also consider that transposition has 
remained a rather formal process, with equality laws never really being scrutinised and modified in order 
to support the substantial and genuine equality of women and to assess whether these laws produce the 
desired results. 

In addition to specific problems of national equality law, the report has also revealed quite a number of 
more general problems that occur in many states or at least in a considerable number of them. 

The gender pay gap remains one of the main concerns. On a positive note in this respect, we can see the 
reinforcement of legal frameworks and the development of some practical tools in various states with a 
view to enhancing the application of the equal pay principle and to bring about actual progress. The most 
telling example of this concerns the introduction of a mandatory equal pay certification system, based 
on an equal pay management standard in Iceland, but also of a free software application to measure 
the pay gap in Poland. More and more states are introducing online tools such as Logib	which allows 
companies to analyse their situation regarding equal pay (e.g. Czechia, Germany and Luxembourg).

Nevertheless, the Pay Transparency Act introduced in 2017 in Germany still reveals several deficiencies 
that will hamper true progress and continue to act as barriers to access to justice, such as the need for 
comparable employees and problems concerning the burden of proof. The exception for remuneration 
systems  under  collective  agreements  is  also  an  important  obstacle  to  the  analysis  and  removal  of 
structural pay discrimination. Moreover, without the ability to bring collective or class actions, more rights 
for works councils and binding obligations, the principle of equal pay will not be strengthened by insulated 
transparency measures.673 In this respect, more transparency should be considered as a condition, but not 
a substitute, for anti-discrimination law enforcement.

Furthermore, the COVID-19 pandemic is considered to have highlighted and exacerbated the gender pay 
gap, inter alia due to the fact that many sectors with predominantly female employees were particularly 
hit  by  the  pandemic.  The  full  effects  of  the  crisis  on  gender  equality  in  relation  to  equal  pay,  equal 
treatment at work and access to work cannot yet be fully appreciated. A more complete picture of this 
should emerge in the coming years.

Structural  difficulties  with  statutory  social  security  persist  in  many  countries,  often  due  to  apparently 
gender-neutral rules which in effect disadvantage women (indirect discrimination). The main problems 
are  related  to  differences  between  full-time  and  part-time  workers,  childcare  leave  creating  gaps  in 
women’s working lives, job segregation with women being overrepresented in low-income sectors and 
the salary pay gap.

Another general concern relates to the enforcement of equality law, which can be seen as one of the 
major challenges to overcome in the future, as the lack of litigation in most states can be taken as an 
indicator that the practical effectiveness of the legal framework is weak. In Section 10.4, a broad range 
of factors explaining the low level of litigation have been identified, which are in need of more in-depth 
investigation and also require a more comprehensive policy strategy to overcome them. These factors 

673  See German Women Lawyers’ Association, https://www.djb.de/verein/Kom-u-AS/K1/st17-05/; https://www.djb.de/verein/

Kom-u-AS/K1/pm18-11/.

199

also expose other general problems, such as the lack of transparency and access to information. It is 
not only wages and pay systems that fall short in terms of transparency and accessibility of data and 
statistics, but also, for instance, gender equality case law. In some states, this case law is not published 
or is very poorly accessible. This is not only a likely cause of inconsistent interpretation by courts, but it 
also does not add to the general awareness of gender equality law among all parties concerned. In this 
context, the limited or incorrect media coverage of gender discrimination cases may also be criticised. 
This state of affairs reinforces another commonly encountered problem: the lack of specific knowledge 
and expertise on the part of courts and equality bodies, as well as of lawyers and potential victims of 
gender discrimination. 

Effective  enforcement  is  also  very  much  hampered  by  the  length  and  costs  of  legal  proceedings,  the 
United Kingdom expert framing this very pointedly by observing that ‘the real problem across the United 
Kingdom is that enforcement is difficult and increasingly expensive to the extent that the legal rights are 
in danger of becoming paper entitlements only’. The Norwegian situation is also telling in this regard, 
where most discrimination cases are brought to the Equality and Anti-discrimination Tribunal because of 
the low threshold and it being free of charge. 

On  top  of  this,  the  low  levels  of  compensation  awarded  in  many  states  by  the  courts  also  creates  a 
disincentive for bringing cases to court at all. The fact that many national laws contain upper limits of 
compensation  also  raises  serious  doubts  as  to  the  compatibility  with  EU  law  requirements.  Only  the 
French and Irish reports show some optimism in this regard, demonstrating an increase in the number of 
court cases and more familiarity with the instruments on regulating discrimination and good accessibility 
of court rulings. 

Another issue concerns the role taken by social partners in implementing and promoting gender equality 
law. The picture emerging here is that in many countries the social partners could play a more active role 
in this regard and that much more could be done. The autonomy of social partners in some countries, 
which sometimes allows them to deviate from legislation, has, in fact, not contributed much to gender 
equality to date. In some cases it has even had a negative effect. Social partners could give more weight 
and priority to gender equality in collective bargaining and agreements. More generally, several experts 
have observed that there is a lack of attention or sense of urgency with regard to gender equality and 
that  more  could  be  done,  including  at  the  levels  of  the  legislature  and  executive  authorities  when  it 
comes to mainstreaming gender equality into all policies, but also at the level of equality bodies. Recent 
political and administrative reforms in a number of countries are exacerbating this problem, as well as 
jeopardising the independence of the judiciary and/or equality bodies (Estonia, Hungary, Poland).

A  very  worrying  issue  raised  in  some  reports  concerns  multiple  discrimination  and  the  current 
reinforcement  of  gender  stereotypes,  traditional  family  values  and  traditional  gender  roles  limiting 
women’s free choices, or at least pressuring women into traditional family roles, that is filtering through 
in national policies, legislation, case law or in political discourse. In some countries, this is clearly related 
to conservative governments being in place (Hungary, Poland). Recent measures of concern in Poland 
are:  the  establishment  of  a  child  benefit  system  that  encourages  women  to  leave  the  labour  market; 
budget cuts regarding the activities of the Commissioner for Human Rights; and the police investigation 
of the financial administration of the Centre for Women’s Rights, the most active women’s NGO. In other 
countries, it may be related to the financial crisis and austerity policies (Greece). Media content may also 
still be characterised by sexism and misogyny (Serbia). 

Another  highly  worrying,  connected  issue  concerns  the  number  of  cases  of  (sexual)  harassment, 
domestic  and  gender-based  violence  (e.g.  Montenegro).  Although  in  some  countries  new  laws  have 
been introduced to reinforce protection against and to prevent and punish such harassment and violence 
(Estonia, Portugal, Serbia) or such protection has been reinforced through case law (Germany), the 
level of protection offered by domestic laws in other countries is deemed insufficient. For instance, people 
who experience such offences may not be considered as ‘vulnerable victims’ (Slovakia) or compensation 

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Overall assessment: law on the books versus law in practice

for damage inflicted may be limited to cases of physical violence (Germany). It must be watched closely 
whether and how this tendency develops in the near future. 

Last but not least, some of the effects of the COVID-19 crisis on gender equality have started to emerge. 
Gender equality has suffered in many countries during the pandemic.674 States focused on developing 
crisis  responses  whilst  often  not  taking  into  account  the  particular  effect  of  the  crisis  on  women  and 
vulnerable groups. Cases of domestic violence and other types of violence against women surged during 
lockdowns, women were particularly burdened by increased care responsibilities and many women were 
exposed  to  a  heightened  risk  of  infection  due  to  working  in  essential  professions.  At  the  same  time, 
women’s participation in the formulation of policies in response to the crisis was largely lacking. 

In relation to work-life balance issues, the gender effects of the COVID-19 pandemic are worrying, with 
women often reported to take on larger proportions of household chores and childcare and thus being 
able to spend less time on their careers. The crisis has also given rise to problems relating to equal access 
to goods and services, especially in relation to health. Access to reproductive healthcare was particularly 
affected,  with  some  experts  reporting  difficulties  concerning  access  to  abortions  or  other  reproductive 
care in their countries (e.g. Belgium, Croatia, Slovakia, Romania). 

Another  worrying  side  effect  of  the  COVID-19  crisis  can  be  seen  in  Hungary,  where  the  government 
used the special political situation, relating to the pandemic, to push through certain legislative initiatives 
without public debate, including the adoption of a political declaration, proposed by MPs from the junior 
coalition party, calling the Government to reject the ratification of the Istanbul Convention by Hungary and 
to oppose the ratification of it by the European Union.675 The full effect of the global pandemic on gender 
equality in Europe more generally still remains to be seen. 

674  For a first mapping of the gendered impact of the COVID-19 crisis, see Böök, B., Van Hoof, F., Senden, L., Timmer, A., (2020) 

‘Gendering the COVID-19 crisis: a mapping of its impact and call for action in light of EU gender equality law and policy’, 
European equality law review No. 2/2020, pp. 20-44, available at: https://www.equalitylaw.eu/downloads/5300-european-
equality-law-review-2-2020-pdf-1-446-kb.

675  Hungary, Political Declaration No. 2/2020. (V. 5.) OGY.

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Annex 1 – EU gender equality Directives

Directive	79/7/EEC

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A31979L0007

Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of 
equal treatment for men and women in matters of social security

OJ	L	6,	10.1.1979,	pp.	24–25	(DA,	DE,	EN,	FR,	IT,	NL)
Greek	special	edition:	Chapter	05	Volume	003	pp.	160	–	162
Spanish	special	edition:	Chapter	05	Volume	002	pp.	174	–	175
Portuguese	special	edition:	Chapter	05	Volume	002	pp.	174	–	175
Special	edition	in	Finnish:	Chapter	05	Volume	002	pp.	111	–	112
Special	edition	in	Swedish:	Chapter	05	Volume	002	pp.	111	–	112
Special	edition	in	Czech:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Estonian:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Latvian:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Lithuanian:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Hungarian	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Maltese:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Polish:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Slovak:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Slovene:	Chapter	05	Volume	001	pp.	215	–	216
Special	edition	in	Bulgarian:	Chapter	05	Volume	001	pp.	192	–	193
Special	edition	in	Romanian:	Chapter	05	Volume	001	pp.	192	–	193
Special	edition	in	Croatian:	Chapter	05	Volume	003	pp.	7	–	8

This Directive applies to statutory social security schemes and prohibits direct and indirect discrimination 
based on sex, in particular with reference to family or marital status, with respect to the scope of the 
schemes and the conditions for accessing them. It specifies that measures taken for the protection of 
women in relation to maternity shall not be affected by the principle of equal treatment.

Directive	92/85/EEC

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31992L0085

Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements 
in the safety and health at work of pregnant workers and workers who have recently given birth or are 
breastfeeding (10 individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)

OJ	L	348,	28.11.1992,	pp.	1–7	(ES,	DA,	DE,	EL,	EN,	FR,	IT,	NL,	PT)
Special	edition	in	Finnish:	Chapter	05	Volume	006	pp.	3	–	10
Special	edition	in	Swedish:	Chapter	05	Volume	006	pp.	3	–	10
Special	edition	in	Czech:	Chapter	05	Volume	002	pp.	110	–	117
Special	edition	in	Estonian:	Chapter	05	Volume	002	pp.	110	–	116
Special	edition	in	Latvian:	Chapter	05	Volume	002	pp.	110	–	117
Special	edition	in	Lithuanian:	Chapter	05	Volume	002	pp.	110	–	117
Special	edition	in	Hungarian	Chapter	05	Volume	002	pp.	110	–	116
Special	edition	in	Maltese:	Chapter	05	Volume	002	pp.	110	–	116
Special	edition	in	Polish:	Chapter	05	Volume	002	pp.	110	–	117
Special	edition	in	Slovak:	Chapter	05	Volume	002	pp.	110	–	117

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A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Annex 1 – EU gender equality Directives

Special	edition	in	Slovene:	Chapter	05	Volume	002	pp.	110	–	117
Special	edition	in	Bulgarian:	Chapter	05	Volume	003	pp.	3	–	10
Special	edition	in	Romanian:	Chapter	05	Volume	003	pp.	3	–	10
Special	edition	in	Croatian:	Chapter	05	Volume	004	pp.	73	–	80

Directive 92/85/EEC regulates the basic rights of workers during pregnancy and after childbirth. It lays down 
protective measures in relation to hazardous or risky working conditions, nightwork, mandatory maternity 
leave,  ante-natal  examinations,  protection  from  dismissal  from  employment  and  the  maintenance  of 
employment rights. 

Directive	2004/113/EC

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004L0113 

Council  Directive  2004/113/EC  of  13  December  2004  implementing  the  principle  of  equal  treatment 
between men and women in the access to and supply of goods and services.

OJ	L	373,	21.12.2004,	pp.	37–43	(ES,	CS,	DA,	DE,	ET,	EL,	EN,	FR,	IT,	LV,	LT,	HU,	NL,	PL,	PT,	SK,	SL,	FI,	SV)
OJ	L	153M,	7.6.2006,	pp.	294–300	(MT)
Special	edition	in	Bulgarian:	Chapter	05	Volume	007	pp.	135	–	141
Special	edition	in	Romanian:	Chapter	05	Volume	007	pp.	135	–	141
Special	edition	in	Croatian:	Chapter	05	Volume	001	pp.	101	–	107

This Directive prohibits direct and indirect discrimination based on sex, as well as harassment and sexual 
harassment, in the provision of goods and services within the European Union. The Directive applies to 
anyone who provides goods and services that are publicly available. This includes public bodies and covers 
the public and private sphere in the case of any goods and services that are offered beyond transactions 
carried out in the context of private and family life.

Directive	2006/54/EC

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32006L0054 

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,	pp.	23–36	(ES,	CS,	DA,	DE,	ET,	EL,	EN,	FR,	IT,	LV,	LT,	HU,	MT,	NL,	PL,	PT,	SK,	SL,	FI,	SV)
Special	edition	in	Bulgarian:	Chapter	05	Volume	008	pp.	262	–	275
Special	edition	in	Romanian:	Chapter	05	Volume	008	pp.	262	–	275
Special	edition	in	Croatian:	Chapter	05	Volume	001	pp.	246	–	259

Directive  2006/54,  also  known  as  the  Recast  Directive,  implements  the  principle  of  equal  treatment 
between women and men in the domain of European Union labour law. The Directive has brought together 
some  older  directives  and  requires  the  implementation  of  the  prohibition  of  direct  and  indirect  sex 
discrimination, harassment and sexual harassment in pay, (access to) employment and in occupational 
social security schemes.

203

Directive	2010/18/EU

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010L0018

Council  Directive  2010/18/EU  of  8  March  2010  implementing  the  revised  Framework  Agreement  on 
parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC

OJ	L	68,	18.3.2010,	pp.	13–20	(BG,	ES,	CS,	DA,	DE,	ET,	EL,	EN,	FR,	IT,	LV,	LT,	HU,	MT,	NL,	PL,	PT,	RO,	SK,	SL,	
FI,	SV)
Special	edition	in	Croatian:	Chapter	05	Volume	003	pp.	276	–	283

This  Directive  concerns  the  basic  right  of  all  parents  in  the  European  Union  to  parental  leave.  It  also 
provides for the right to return to the original job after the leave (or a similar position) and to maintain any 
previously acquired employment-related rights, determines the kind of conditions employers may apply 
to the leave, and addresses the needs of adoptive parents. Moreover, it provides for the right to time off 
for urgent family reasons, sickness or accidents. 

Directive	2010/41/EU

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32010L0041 

Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application 
of the principle of equal treatment between men and women engaged in an activity in a self-employed 
capacity and repealing Council Directive 86/613/EEC

OJ	L	180,	15.7.2010,	pp.	1–6	(BG,	ES,	CS,	DA,	DE,	ET,	EL,	EN,	FR,	IT,	LV,	LT,	HU,	MT,	NL,	PL,	PT,	RO,	SK,	SL,	
FI,	SV)
Special	edition	in	Croatian:	Chapter	05	Volume	002	pp.	245	–	250

Directive 2010/41/EU implements the principles of equal treatment and non-discrimination with respect 
to self-employment. It sets out provisions in relation to matters such as maternity benefits and social 
protection.

Directive	2019/1158/EU

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32019L1158

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

PE/20/2019/REV/1
OJ	L	188,	12.7.2019,	pp.	79–93	(BG,	ES,	CS,	DA,	DE,	ET,	EL,	EN,	FR,	GA,	HR,	IT,	LV,	LT,	HU,	MT,	NL,	PL,	PT,	
RO,	SK,	SL,	FI,	SV)

The  new  Directive  2019/1158/EU  concerns  anyone  who  has  an  employment  contract  or  is  in  an 
employment relationship defined by law, and lays down minimum requirements with respect to paternity 
leave,  parental  leave,  carers  leave  and  flexible  working  arrangements,  to  apply  across  all  EU  Member 
States. It also contains provisions on acquired employment rights, as well as protection from dismissal 
and adverse treatment or consequences.

204

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Annex 2 – Equality bodies676

Albania
– Commissioner for the Protection from Discrimination

Austria
– Ombud for Equal Treatment
– Austrian Disability Ombudsman

Belgium
– Unia (Interfederal Centre for Equal Opportunities)
– Institute for the Equality of Women and Men
– Federal Centre for Migration (Myria)

Bulgaria
– Commission for Protection Against Discrimination

Croatia
– Office of the Ombudsman
– Ombudsperson for Gender Equality
– Ombudswoman for Persons with Disabilities

Cyprus
– Office of the Commissioner for Administration and the Protection of Human Rights (Ombudsman)

Czechia
– Public Defender of Rights

Denmark
– Board of Equal Treatment
– Danish Institute for Human Rights

Estonia
– Gender Equality and Equal Treatment Commissioner
– Chancellor of Justice

Finland
– Ombudsman for Equality
– Non-Discrimination Ombudsman

France
– Defender of Rights

Germany
– Federal Anti-Discrimination Agency – FADA

Greece
– Greek Ombudsman
– The Consumer’s Ombudsman (Directive 2004/113/EC in the private sector)

676 

 See also https://equineteurope.org/what-are-equality-bodies/. 

205

Hungary
– Equal Treatment Authority (until 31 December 2020)
– Office of the Commissioner for Fundamental Rights (from 1 January 2021)

Iceland
– Centre for Gender Equality

Ireland
– Irish Human Rights and Equality Commission

Italy
– National Equality Councillor
– Local Equality Councillors
– National Office against Racial Discrimination – UNAR

Latvia
– Office of the Ombudsperson

Liechtenstein 
– Office for Social Services
– Association for Human Rights

Lithuania
– Office of the Equal Opportunities Ombudsperson

Luxembourg
– Centre for Equal Treatment

Malta
– Commission for the Rights of Persons with Disability - CRPD
– National Commission for the Promotion of Equality – NCPE

Montenegro
– Protector of Human Rights and Freedoms of Montenegro (Ombudsman)

Netherlands
– Netherlands Institute for Human Rights (formerly Equal Treatment Commission)

North Macedonia 
– Commission for Protection against Discrimination
– Ombudsperson

Norway
– Equality and Anti-Discrimination Ombud – LDO
– Equality and Anti-Discrimination Tribunal

Poland
– Commissioner for Human Rights

Portugal
– High Commission for Migration
– Commission for Citizenship and Gender Equality - CIG
– Commission for Equality in Labour and Employment – CITE

206

A COMPARATIVE ANALYSIS OF GENDER EQUALITY LAW IN EUROPE – 2021Annex 2 – Equality bodies

Romania
– National Council for Combating Discrimination – CNCD

Serbia
– Commissioner for the Protection of Equality

Slovakia
– National Centre for Human Rights

Slovenia
– Advocate of the Principle of Equality

Spain
– Institute of Women and for Equal Opportunities
– Council for the Elimination of Racial or Ethnic Discrimination

Sweden
– Equality Ombudsman

Turkey 
– Human Rights and Equality Institution

United Kingdom
– Great Britain - Equality and Human Rights Commission (EHRC)
– Northern Ireland - Equality Commission for Northern Ireland

207

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