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The enforcement of the principle of equal pay for equal work or work of equal value

Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States. Although there is a big difference between the countries with the lowestpay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called ‘unadjusted’ gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference), there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated.

The text of this report was drafted by Petra Foubert, coordinated by Alexandra Timmer, Erin Jackson and Franka van Hoof for the European network of legal experts in gender equality and non-discrimination.

Background of Report

Against the background of the low amount of national case law, and given the persisting gender pay gap on the one hand, and the many actions already undertaken by the EU and its Member States on the other, the European Commission requested its European network of legal experts in gender equality and non-discrimination to prepare a report on the enforcement of the equal pay principle in particular. The Network distributed a detailed questionnaire amongst 31 national legal experts from the current 28 EU Member States and the other three EEA countries. Questions related to the national legislative framework with respect to judicial enforcement (for example, which judicial bodies are competent, who can bring a claim, which procedural rules are applicable, etc.), to the possibilities of non-judicial enforcement (internal and external procedures, ADR, reporting duties, etc.), to the available remedies (compensation and reparation) and penalties (for example, fines and imprisonment), to protection against victimisation and to the role of the national equality bodies. Finally, the questionnaire enquired about national ‘good practices’, that could serve as an example for other states and potentially also for future EU legislative measures. The 31 country reports that resulted from the questionnaire provided the information on which this report is based.

Outline of Report

After sketching an overview of the general situation in Europe with respect to the principle of equal pay for men and women (chapter 1), this report continues with a brief overview of the ways in which the EU Member States and the EEA countries have implemented the equal pay principle on the national legislative level (chapter 2). Chapter 3 focuses on the actual enforcement of the principle of equal pay in the 31 states covered. It addresses judicial and non-judicial enforcement (Sections 3.1 and 3.2, respectively), typical remedies allowed in both judicial and non-judicial enforcement, including compensation and reparation (Section 3.3), the measures aimed at protecting employees against victimisation (Section 3.4), the penalties involved (Section 3.5) and the role and competences of the equality bodies with regard to sex-based pay discrimination (Section 3.6). The last chapter of this report (chapter 4) presents conclusions, good practices and recommendations.

Equality Bodies

All national experts have reported the existence of a national equality body (or several bodies) that is/are competent to deal with problems and/or claims relating to the principle of equal pay for equal work or work of equal value for men and women. It has turned out, however, that such equality bodies may take many different forms and that their competences may vary enormously from country to country.

The competences of the national equality bodies appear to be numerous and diverse, and many of them relate to the enforcement of the principle of equal pay for men and women. Many equality bodies have competences regarding the non-judicial enforcement of the equal pay principle. Most of the national equality bodies are involved in awareness-raising campaigns and the promotion of sex equality by all useful means, including public events and conferences, training sessions for lawyers, civil servants, NGOs, public authorities and companies, the development of prevention tools and e-learning courses, information and consultation days, etc. Advising stakeholders, in the form of statements, opinions or decisions in particular cases, and/or conducting research more generally is also a task that must be taken up by many national equality bodies. For some of them it is even their only task. Stimulating social dialogue and working with social partners is another example. Finally, some national equality bodies also play a role, which can take on many different forms, in ADR. Apart from their non-judicial enforcement competences, a number of equality bodies are also involved in the judicial enforcement of the equal pay principle.

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