The gender pay gap in the EU - Ghent...

Faculty of Law Academic Year 2014-15

Exam Session 1/2

The gender pay gap in the EU All roads lead back to Brussels

LLM Paper by Jacintha Vermeersch

Student number : 01070467

Promoter : Prof. dr. Patrick Humblet

V

Preface

As the end of the LLM program is coming to an end, so is my effort of writing this

dissertation. Even though I have already written two dissertations during my studies, writing a

thesis remains a challenge. Therefore I’m grateful for the endless support and help I received

along the way.

First of all I want to express my gratitude to my supervisor, Prof. dr. Patrick Humblet, on

whom I could always rely if I had any doubts. He also provided me with feedback on my draft

versions of this paper so to remain sure that I could deliver a valuable document at the end of

this writing process.

Secondly I want to say “thank you” to my friends and family. I knew that I could always fall

back on them. Whether it was for a listening ear or to buy me ink cartridges to print the

numerous documentations, they were always there for me. Of course I was not the only one

who had to go through this entire process, so knowing that my fellow students were just as

much making working very hard definitely helped. When one of us had enough of being

locked up in their room, we met for coffee and expressed our complaints to each other.

Afterwards we felt relieved and all set to get back to writing our thesis. Also during the Easter

holidays Ays and I teamed up in the library every day to continue writing our thesis. Even on

the sunniest days.

Moreover I would like to thank one of the persons I met during my Erasmus in Berlin: Kai

Chen. As he is a native English speaker, he was the right person to read through my

dissertation and detect my language mistakes. Even though he was working on his dissertation

himself, he still managed to have a quick look at my dissertation.

Lastly I want to show appreciation to everyone else who contributed to my dissertation in one

way or another.

VII

Table of content

Preface .................................................................................................................................. V

Table of content ................................................................................................................. VII

List of figures .................................................................................................................... VIII

Abbreviations ....................................................................................................................... IX

Introduction .......................................................................................................................... 11

1. Defining the gender pay gap ........................................................................................ 13

1.1 Concept ................................................................................................................. 13

1.2 Calculation methods .............................................................................................. 13

1.3 The (un)adjusted gender pay gap .......................................................................... 14

2 Explanatory factors ...................................................................................................... 14

2.1 An overview .......................................................................................................... 14

2.2 How the observable characteristics explain the gender pay gap ........................... 16

3 The gender pay gap in the EU ..................................................................................... 21

4 History: economic incentive ........................................................................................ 23

5 Phase 1: hard law ......................................................................................................... 24

5.1 Treaty provision on equal pay ............................................................................... 24

5.2 Directives .............................................................................................................. 25

5.3 Case law ................................................................................................................ 32

6 Phase 2: soft law .......................................................................................................... 38

7 Phase 3: focus on social partners ................................................................................. 48

8 Further developments .................................................................................................. 54

9 Conclusion ................................................................................................................... 57

Bibliography ..................................................................................................................... LXI

VIII

List of figures

Figure 1: adjusting the gender pay gap (Eurofound, 2010, p. 4) ......................................... 15

Figure 2: the evolution of the unadjusted gender pay gap between

2010 and 2013 (Eurostat) .................................................................................................... 22

IX

Abbreviations

CEEP European Centre of Employers and Enterprises

providing Public Services

e.g.

exempli gratia (= for example)

EC

European Community

CJEU

Court of Justice of the European Union

EEC

European Economic Community

EES

European Employment Strategy

ETUC

European Trade Union Confederation

EU

European Union

Eurofound European Foundation for the Improvement of Living

and Working Conditions

NAPs

National Action Plans

NGOs

non-governmental organisations

Sabena Societé Anonyme Belge d’Exploitation de la

Navigation Aérienne

SES

Structure of Earnings Survey

TFEU

Treaty on the Functioning of the European Union

UK

United Kingdom

UEAPME European Association of Craft, Small and Medium-

Sized Enterprises

UNICE (currently: BUSINESSEUROPE) Union of Industrial and Employer Confederations of

Europe (now : Confederation of European Business)

11

Introduction

It is remarkable that up until today women on average still earn less than their male

colleagues. The gender pay gap in the European Union is currently around 16% and has

remained rather stable over the past years.

This, however, does not mean that no effort has been made to bring this phenomenon to an

end. It is already since the Treaty of Rome in 1957 that a provision on equal pay forms part

of the EU legislation.

Even when the principle reason for introducing a provision on this topic was purely

economic, 50 years later we are already far beyond this logic. During the last decades the

European institutions have used various means to try to reduce the gender pay gap.

A first focus was on hard law. Next to the Treaty provision, two Directives addressing the

gender pay gap have been introduced. Also the Court of Justice of the European Union

played an important role in shaping and clarifying the concept of equal pay.

Nevertheless it soon became clear that having those legal provisions and rules was not

going to be enough to bring about a substantial reduction of the gender pay gap.

As a consequence various so-called soft law measures have been introduced over the years.

These range from strategies, roadmaps, communications to reports, resolutions and

decisions. Using soft law to address a particular problem is more and more used by the

European institutions. By this the Member States are left with a wide margin for action

while they are still informed of some best practices or guidelines.

During those soft law measures it became clear that a multifaceted approach was crucial if

a lowering of the gender pay gap wanted to be achieved. As a consequence the social

partners started to play a more important role in this story.

However even when they have various means at their disposal to make pay for men and

women more equal, there are still some weaknesses related to them which seems to limit

their contribution.

Seeing all the effort that has been made during the last half a century, it can be questioned

what there still can be done and how it is even possible that the gender pay gap remains so

stable.

All of these measures will be discussed extensively in this paper in order to try and find an

answer to that question.

So in this paper first a definition of the gender pay gap will be provided. Followed by a

discussion on the explanatory factors and how they contribute to the gender pay gap.

Thirdly the situation in the European Union will be looked at more closely. Next to this the

12

creation of the equal pay provision in the EU legal framework will be explained. Related to

the foregoing the 5th

chapter will focus on the hard law measures enacted by the European

Union. Here the Treaty provision, Directives and case law will be addressed. In contrast to

this the subject of the 6th

chapter is the soft law measures. This will be followed by a

chapter in which the role of the social partners will be discussed more thoroughly and

lastly some further developments will be presented.

13

1. Defining the gender pay gap

As the central concept of this paper is the gender pay gap, it is important to firstly define

what is meant by this and how it can be measured. Furthermore there is both an unadjusted

and an adjusted form of the gap. Each of these aspects will be clarified in the following

paragraphs.

1.1 Concept

In some countries the meaning of the gender pay gap seems to be unspecified which leaves

the concept open for interpretation. Nevertheless in a big part of the world a clear meaning

has been provided.1

Having a clear understanding of the concept definitely accounts for the EU. In its 2007

Communication the European Commission refers to the gender pay gap as following: “the

(gender) pay gap measures the relative difference in average gross hourly earnings of

women and men within the economy as a whole.”2

As noticed in the definition given by the European Commission gross hourly earnings are

being used. Not everybody works the same number of hours and there can be big

differences in the income tax system among the Member States. Thus in order to make the

concept as general as possible, those aspects are being taken into account by using the

gross hourly wage to determine the gender pay gap.3

It is also important to not confuse the gender pay gap with the gender income gap. The

former only refers to gender differences for paid work while the latter takes into account a

broader range of income sources, namely: “income from self employment, from capital

investment and income transfers (including welfare benefits)”. 4

1.2 Calculation methods

According to Plantegna & Remery (2006) different methods can be used to express the

gender pay gap. A first way to calculate the gap is to divide the women’s average gross

hourly wage by men’s average gross hourly wage. A second method is to deduct women’s

gross hourly wage from men’s and to divide that result by the men’s average gross hourly

wage. The outcome expresses how many percentage points the earnings of men have to

1 European network of legal experts in the field of gender equality. The Gender Pay Gap in Europe from a

Legal Perspective (including 33 country reports). Luxembourg: Publications office of the European Union,

2010: 7. 2 Communication from the Commission to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions- Tackling the pay gap between women and men,

COM/2007/0424 final: 2. 3 Smith, Mark. “Social regulation of the gender pay gap in the EU.” European Journal of Industrial Relations

18.4 (2012): 369. 4 Barry, Ursula, et al. “indicators on gender gaps in pay and income.” Rubery, Jill, et al. Indicators on Gender

Equality in the European Employment Strategy. 2002. 74.

14

shrink in order to be equal to those of women.5 As stated by Einarsdottir and Blöndal

(2004) in Mósesdóttir, Dofradóttir, Einarsdóttir, Blöndal, þórðarson and Ásgeirsdóttir

(2006) the same can be done by measuring the gender differences in pay against the gross

hourly earnings of women. This then expresses how strong women’s wages will have to

increase for them to equalise men’s pay. So to ensure that the percentage indicating the

gender pay gap is not misinterpreted, it is important for the researcher to clearly state how

he/she made his/her calculation.6

1.3 The (un)adjusted gender pay gap

Furthermore the gender pay gap can be divided in an unadjusted gender pay gap and an

adjusted form. The first category indicates the overall gap between men and women’s

hourly wages. However a part of this gap can be explained by observable characteristics

such as company characteristics, the type of job, experience or differences in education.

What is left after adjustments for those components is called the ‘adjusted gender pay gap’.

It is said that this residual category reflects the purely discriminatory part of the gender pay

gap based on a person’s gender. However one should be cautious when saying this as many

of the observable characteristics can also be linked to indirect discrimination. In other

words it is possible that sex discrimination already plays a role in the observable

characteristics of the unadjusted gender pay gap, even if that characteristic seems neutral at

first sight.7

The observable characteristics that compose the difference between the unadjusted and

adjusted gender pay gap will be looked at more closely in the next paragraph.

2 Explanatory factors

2.1 An overview

Several studies have looked at the components that constitute the unadjusted gender pay

gap. Comparing said research, it can be noted that different authors refer to different

elements and/or categories. As a result the factors used to explain the gender pay gap are

also numerous.

The Eurofound study of 2010 is one of the research papers addressing this issue. It

mentions six categories to go from the unadjusted gender pay gap to the adjusted pay gap,

namely:

5 Plantenga, Janneke. and Chantal Remery. “The gender pay gap. Origins and policy responses. A

comparative review of thirty European countries.” The coordinators’ synthesis report prepared for the

Equality Unit, European Commission (2006): 4. 6 Mósesdóttir, Lilja, et al. Evaluating Equal Pay in the Nordic Countries. Reykjavík: Project Group for Equal

Pay (2006): 13. 7 Smith, M. op. cit. 369.

15

Type of contract and working hours

Personal characteristics

Job history

Job, company and workplace characteristics

Contextual variables, such as region

Institutional variables8

The six categories are clearly demonstrated in Figure 1:9

Figure 1: adjusting the gender pay gap (Eurofound, 2010, p. 4)

Another distinction is made by Plantenga and Remery (2006). In their research only three

big groups are mentioned. The first one is the individual characteristics category which

includes elements such as age, education and experience. 10

This category is equal to the

personal characteristics category mentioned by the Eurofound (2010) study. As

individual/personal characteristics are given a broad interpretation in those studies, they

can also be referred to as human capital. This human capital encompasses personal

characteristics, knowledge, skills and experiences. 11

Secondly job characteristics are being included by Plantenga and Remery (2006). This

category seems to match the job, company and workplace characteristics by Eurofound

(2010). The job characteristics category classifies elements such as occupation, job level

and firm size.12

8 Ponzellini, Anna Maria, Christine Aumayr and Felix Wolf. Addressing the gender pay gap: government and

social partner actions. Dublin: Eurofound, 2010: 5. (Eurofound study) 9 Eurofound study. op. cit. 4.

10 Plantenga, Janneke. and Chantal Remery. op. cit. 5.

11 Hillman, Amy J., Albert A. Cannella and Ira C. Harris. “Women and Racial Minorities in the Boardroom.

How do directors differ?” Journal of Management 28.6 (2002): 749. 12

Plantenga, Janneke and Chantal Remery. op. cit. 16.

16

Lastly the overall structure of wages is seen as a third category of observable

characteristics. According to Blau & Kahn (2000) this is “the array of prices determined

for labour market skills and the rewards to employment in particular sectors”.13

Plantenga

and Remery (2006) state in their study that the structure of wages can be influenced in

three ways: by the structure of supply and demand, through technological change and by

the wage-setting institution.14

The latter seems similar to the institutional variables

indicated by Eurofound (2010).

What are left after adjusting the gender pay gap for the explanatory factors are the result of

discrimination and/or the result of an incomplete list of the explanatory factors that had to

be taken into account.

2.2 How the observable characteristics explain the gender pay gap

Sectoral or horizontal segregation

A first factor that is looked at is the sectoral segregation. This factor falls under the job

characteristics category mentioned under 2.1. It is noted that women seem to be dominant

within certain sectors of the economy. Those industries are in general low-paid.15

The sectors that are most affected by the gender pay gap typically include sectors for

which the average income is generally high. An example could be finance or insurance.

Also for the highly feminised, low paid sectors such as education and healthcare services

the gender pay gap was reported to reach high levels. However in sectors were only a few

women are active a very low gender pay gap can be found. Construction and mining are

two illustrations hereof.16

Vertical segregation

A second form of segregation which is considered in the Eurofound study (2010) is vertical

segregation. This form refers to career progression within one particular sector or

company. 17

It seems that men tend to more active in functions that require a higher level of

responsibility and skills. In those professions such as the higher skilled occupational group,

managers, professionals and technicians, women earned only 70 % of the wages of the

opposite sex.18

13

Blau, Francine D., and Lawrence M. Kahn. “Gender Differences in Pay.” The Journal of Economic

Perspectives 14.4 (2000): 80. 14

Plantenga, Janneke. and Chantal Remery. op. cit. 17. 15

Eurofound study, op. cit. 8. 16

European network of legal experts in the field of gender equality. op. cit. 9. 17

Eurofound study. op. cit. 9 18

European Commission Directorate-General for Employment, Industrial Relations and Social Affairs.

Employment in Europe 1998. Jobs for people-people for jobs: turning policy guidelines into action.

Luxembourg: Office for Official Publications of the European Communities, 1998: 79.

17

On the contrary women are very often active as an administrative assistant or a shop

assistant. Also other low-skilled or unskilled jobs within an undertaking or sector are often

carried out by women. 19

As an explanation for this phenomenon it appears that when recruitment and career

advancement are not that strictly regulated, and managers thus have a bigger say in the

decision to be made, this has a negative impact on the career progression of women

compared to men. In this case decisions are more easily biased by stereotypes20

. This

conclusion is also noted in research done by Clarke, Pedersen, Michielsens and Susman

(2005) where the inclusion of women in the construction industry has been investigated

and how social partners can contribute to this.21

According to Eurofound (2010) segregation is often seen as one of the main explanatory

variables of the gender pay gap.22

However considering segregation as one of the elements

that differentiates the unadjusted gender pay gap from its adjusted form can be discussed.

It is considered possible that segregation is not only the result of personal choices but also

due to discrimination itself.23

This can be linked to what has been stated above with regard

to the stereotypes impeding a woman to climb up on the career ladder.

Division of domestic labour

Another element that contributes to the wage difference between men and women is the

care responsibility, falling under the personal characteristics category. Women still tend to

be the principal care giver. The time women spend on caring activities is about four times

as long as for men.24

Because of this role they more often choose part-time work and are

not keen of long business trips or unplanned overtime.25

Having to take care of the children and running the household also implies that women

take leave more often. The reason why parental leave is taken up by the mother in most of

the cases is firstly the result of cultural traditions. Nevertheless, structural factors play a

role. There is often no legal basis granting the same rights to the father. Moreover

companies are not keen of having this system for their male workers.26

Even when returning to employment is guaranteed after taking up parental leave, it still

hinders a women’s career. Their occupation had been paused for quite an extensive period

and as a consequence, they have shorter periods of accumulated professional experience

19


Eurofound study. op. cit. 9. 21

Clarke, Linda, et al. “The European construction social partners: Gender equality in theory and practice.”

European Journal of Industrial Relations 11.2 (2005): 157. 22


European network of legal experts in the field of gender equality. op. cit. 7 24

Barry, Ursula, et al. op. cit. xv. 25


Rubery, Jill, et al. “Indicators on Gender Equality in the European Employment Strategy.” 2002: 118.

18

which then negatively affects their wages. 27

Furthermore a Hungarian report has shown

that the gender pay gap is positively correlated to the number of children. 28

Contractual characteristics

Contractual characteristics also play a role in explaining the gender pay gap. Again women

are often working part-time and take on temporary jobs more frequently than their male

counterparts. According to the Eurofound (2010) report being active in these non-standard

jobs seems to contribute to the gender pay gap29

. This has also been shown in the study

conducted by Smithson, Lewis, Cooper and Dyer (2004) with regard to flexible working

within the accountancy profession in the UK and the effect it has on the gender pay gap.30

While the main reason for women to take up flexible working is to combine work and

family responsibilities, men usually start doing this to participate in extra training or to

conduct further studies. Less than five percent of men take up part-time work for family

reasons. 31

Furthermore, women usually start working part-time during their main earning years. Men

only consider it once their career is already fully established or at the beginning of their

profession. Thus men are able to build up their salary during a more continuous period of

time, leading to a reinforcement of the gender pay gap.32

Life course, career development and age group

Additionally the gender pay gap seems to vary along different stages in life and career.33

The gender pay gap seems to widen with age. Women older than 55 are confronted with

the lowest relative pay in their career.34

Nevertheless, being between 30 and 49 years old

has been indicated as the age group where the gap is the widest. This would again have to

do with women taking up leave as to take care of the children, while men do not seem to

interrupt their career at that stage.35

Education and qualifications

In many countries women having a lower education or, to the contrary, having a

postgraduate degree seem to be confronted with the largest gender pay gap.36

27

Meurs, Domique, Ariane Pailhé and Sophie Ponthieux. “Enfants, interruptions d’activité des femmes et

écart de salaire entre les sexes.” Revue de l’OFCE 3 (2010) : 122. 28



Smithson, Janet, et al. “Flexible working and the gender pay gap in the accountancy profession.” Work,

Employment & Society 18.1 (2004): 130. 31


Smithson, Janet, et al. op. cit. 127. 33


Rubery, Jill, et al. op. cit. 96. 35


Ibid. 9.

19

With regard to the postgraduate degree, the return to a university-level education was

found to be lower for women than for men. This difference in return thus offers a possible

explanation. 37

Nevertheless, in regards to education and qualifications, the gap between men and women

seems to have narrowed over the years. As a result this observable characteristic is less

apparent in the unadjusted gender pay gap.38

Also Rlangenga & Remery (2006) come to

the conclusion that individual characteristics are no longer a main determining factor.39

As the human capital has been losing credibility for explaining the gender pay gap, various

studies have started to pay more attention to workplace characteristics and wage structures

as well.

Evaluation of work

One of the new focus points in studies has been the evaluation of work. Jobs and skills that

are particularly relevant for female employees are often valued differently than those for

male labour. This is possible as an organisation’s internal valuation system may be

influenced by social norms and stereotypes. As a consequence different states have

introduced projects to obtain more objective evaluation schemes.40

Company characteristics

Moreover, company characteristics also seem to play a role in explaining the unadjusted

gender pay gap. In general, women working in private companies are confronted with a

higher gender pay gap than when they would be working in the public sector or a public

company.41

McGuinness, Kelly, O’connell & Callan (2011) came to a similar conclusion.42

According to Barry et al (2001) there might be several explanations for this. First of all

employment in the public sector tends to have a more compressed wage structure leading

to smaller differences. Secondly not only low-qualified women work in the public sector

but also numerous highly skilled, professional female workers. Additionally it can also be

that equal opportunities stand higher on the agenda in the public sector compared to the

overall labour market.43

37

European Commission Directorate-General for Employment, Industrial Relations and Social Affairs. op.

cit. 81. 38


Plantenga, Janneke, and Chantal Remery. op. cit. 26. 40

Rubery, Jill, Damian Grimshaw, and Hugo Figueiredo. “How to close the gender pay gap in Europe:

towards the gender mainstreaming of pay policy.” Industrial Relations Journal 36.3 (2005): 204. 41

Eurofound study. op. cit. 12 42

McGuinness, Seamus, et al., “The impact of wage bargaining and worker preferences on the gender pay

gap.” European Journal of Industrial Relations 17.3 (2011): 289 43

Rubery, Jill, et al. op. cit. 91.

20

With regards to the size of the company, there seems to be less clarity. In some cases the

gender pay gap increases in small companies while in other situations the opposite

occurs.44

As for the difference in pay gap between industry and services, for some countries such as

Portugal and Greece, a wider gender gap was found in the industry. However in most other

states the pay difference between men and women was bigger in the private services

compared to industry. A possible explanation for this could be that industry is more often

covered by collective bargaining agreements while for services individual wage setting

procedures are more common.45

Industrial relations and collective bargaining

Lastly Eurofound (2010) mentions industrial relations and collective bargaining as aspects

influencing the gender pay gap. Trade union membership is also being mentioned.46

It is believed that collective bargaining at a central level is most likely to narrow the gender

pay gap as it will limit the pay differences between various sectors and jobs. Especially

because it are particular female-dominated sectors where collective bargaining is otherwise

missing. 47

Furthermore setting a minimum wage tends to beneficially affect the unadjusted gender

pay gap. As it was already mentioned earlier mainly women are active in low-paid jobs and

sectors. Consequently imposing such a minimum wage will especially improve the wage

conditions of women.48

Nevertheless the level at which the minimum wage is set will be

determining its positive impact.49

Another study that indicates wage bargaining, trade union membership and minimum wage

as factors influencing the gender pay gap is the research done by McGuinness, Kelly,

O’Connell & Callan (2011)50

. Despite the positive impact trade unions can have on the

gender pay gap, it are often male-dominated sectors where trade unions are well

represented. As a consequence it is possible that the positive effects trade unions might

have on wages is limited to these male-dominated sectors, leaving the situation for women

unchanged. As a result the gender pay gap can thus also widen.51

44


Rubery, Jill, et al. op. cit. 93. 46

Ibid. 12. 47

Ibid. 12. 48

Ibid. 12. 49

Rubery, Jill, Damian Grimshaw, and Hugo Figueiredo. op. cit. 196. 50

McGuinness, Seamus, et al. op. cit. 277-293. 51

Eurofound study. op. cit. 12.

21

3 The gender pay gap in the EU

This section of the paper will explore the height of the gender pay gap within the European

Union, accompanied by a comparison between countries as well as comparison over time.

Nevertheless comparing the gender pay gap isn’t easy. Different studies use different data,

samples and methods. As a result even for a single country, diverse studies might indicate

various percentages which could mean that a Member State can as well have a low,

average and high gender pay gap depending on the figures being looked at.52

Another

consequence of these varying estimates is that comparison over time becomes very

difficult because changes can simply result from a revision in research methods.53

To do away with this problem a harmonised measure of the unadjusted gender pay gap has

been develop at European level. According to the metadata of Eurostat that gender pay gap

represents the following: “the difference between average gross hourly earnings of male

paid employees and of female paid employees as a percentage of average gross hourly

earnings of male paid employees. All employees working in firms with ten or more

employees, without restrictions for age and hours worked, are included.”54

The gender pay gap data on the website of Eurostat are based on the methodology of the

Structure of Earnings Survey (SES). This survey has been obligatory since 1999 and is

conducted every four years, with the first results dating from the year 2002. It includes data

of all EU Member States, Euro Area countries, Iceland, Norway and Switzerland.55

The Structure of Earnings Survey is seen as one of the most reliable sources of information

for composing the gender pay gap. Nevertheless up until 2006 these results were biased in

a way because the public administration as well as health care and education were not

included.56

As aforementioned the workforce of the public sector contains a high number

of women and the gender pay gap tends to be smaller in that sector. From 2006 onwards

health care and education are also part of the survey, but the public administration remains

excluded.57

The following bar chart shows the average gender pay gap of all 28 EU Member States as

well as for each Member State separately. Both the years 2010 and 2013 are being

indicated so that the evolution can be seen. The data for this graph are based on the SES

2010, found on the Eurostat website.

52

Barry, Ursula, et al. op. cit. 86. 53

Plantenga, Janneke and Chantal Remery. op. cit. 11. 54

Eurostat. Gender pay gap in unadjusted form. Metadata.

http://ec.europa.eu/eurostat/cache/metadata/EN/tsdsc340_esmsip.htm. Retrieved at 24 March 2015. 55

Ibid. 56

Plantenga, Janneke and Chantal Remery. op. cit. 11-12. 57

Eurostat. NACE Rev. 2 – Statistical classification of economic activities.

http://ec.europa.eu/eurostat/web/nace-rev2. Retrieved at 6 April 2015.

http://ec.europa.eu/eurostat/cache/metadata/EN/tsdsc340_esmsip.htm

http://ec.europa.eu/eurostat/web/nace-rev2

22

Figure 2: the evolution of the unadjusted gender pay gap between 2010 and 2013 (Eurostat) 58

In 2010 women in the EU were on average earning 16.1 % less per hour than men. Three

years later the percentage hardly changed and is now at 16.4, although this figure is still

provisional. In 2008 the figure was 17.3 %. This might look as if the gap has been

decreasing between 2008 and 2010 but most likely the difference can be explained by the

accession of Croatia, which tends to have a rather low gender pay gap (5.7% in 2010). It

can be concluded that the average gender pay gap in the EU has remained more or less

stable over the years. Also for the period 2006-2009 Smith (2012) noticed during his study

that the number stays rather fixed. 59

The highest gender pay gap for both years can be found in Estonia with 27.7% in 2010 and

29.9% in 2013. Also the country with the lowest figure is the same for 2010 and 2013,

namely Slovenia with 0.9 and 3.2 respectively. The second lowest gender pay gap does

differ between the two years. For 2010 it was Portugal while in 2013 Malta takes the

second place.

As the graph further indicates some changes within countries can be found despite the

rather stable average EU 28 gender pay gap. Smith (2012) tends to be rather sceptical

58

Eurostat (2015). Gender pay gap in unadjusted form. %-NACE Rev. 2 (Structure of Earnings Survey

methodology).

http://ec.europa.eu/eurostat/tgm/printTable.do?tab=table&plugin=1&language=en&pcode=tsdsc340&print

Preview=true#. Retrieved at 24 March 2015. 59

Smith, Mark. op. cit. 370.

0,0% 2,5% 5,0% 7,5%

10,0% 12,5% 15,0% 17,5% 20,0% 22,5% 25,0% 27,5% 30,0%

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m

note: *= provisional **= estimated

evolution of the unadjusted gender pay gap (% - Structure of Earnings methodology)

2010

2013

http://ec.europa.eu/eurostat/tgm/printTable.do?tab=table&plugin=1&language=en&pcode=tsdsc340&printPreview=true


23

about these variations and says that they are most likely due to methodological issues

rather than adjustments in the wage structure.60

He further notes that some low gender pay gaps may be the result of women not being very

economically active in those Member States. The limited number of women that are

working will most likely be higher educated women that are strongly attached to the labour

market.61

If the figures are looked at more closely some optimistic trends can be found. In 2013 there

are only four Member States that have a gap over 20% (Czech Republic, Germany, Estonia

and Austria) while Smith (2012) had still found seven cases in 2009. The two additional

states are Slovakia and the United Kingdom. On the contrary, the number of Member

States with a percentage below ten evolved from five in 2009, being Italy, Luxembourg,

Malta, Poland and Romania62

, to eight Member States in 2013. Croatia has been added to

this category due to its accession and the situation in Belgium and Slovenia has improved.

This seems to indicate that at least in some Member States the gender pay gap is slowly

being reduced. Nevertheless it should be kept in mind that the average remains stable,

indicating that there are also Member States where the gap increases. Looking at the

graph, an increase can be found for 14 states.

The fact that the gender pay gap is widening in some Member States and on average

remains rather stable, is a disappointing conclusion. From the very beginning of the

European Union, the gender pay gap has been part of EU law and ever since it has never

been away from the European agenda. Several initiatives have been taken and the

development hereof will be looked at more closely in subsequent paragraphs. Hopefully

this gives a clearer insight as to why the European Union remains unable to tackle this

issue and some areas for improvement will be found.

4 History: economic incentive

It was already in 1957 that an article on equal pay was introduced in the Treaty of Rome.

The reason for having this treaty provision however, was not social but rather economical.

France had already some equal pay legislation in force at that time and feared that by

unifying the market, it would be placed at a competitive disadvantage as its female labour

force would be more expensive than in Member States where no provision on equal pay for

men and women had to be obeyed. 63

So by inserting a provision on the principle of equal

pay for equal work at Community level, the French unrest was eased.

60

Smith, Mark. op. cit. 370. 61

Ibid. 370. 62

Ibid. annex table 1. 63

Burri, Susanne. “EU Gender Equality Law Update 2010.” 2010: 2

24

Already in its constitution of 1946 equality for men and women was provided in France.

During that same year a decree was enacted which then eliminated all wage differentials by

collective agreements which were clearly based on one’s sex. The law of 11 February 1950

went even a step further and requested that the principle of equal pay for equal work had to

be ensured for wage rates which were the result of collective bargaining.64

Against this background it can be argued that the willingness from the other Member

States to insert such a principle in the Treaty of Rome was probably more a political move

than a real commitment towards equal pay for men and women. This lack of commitment

is especially shown in the years after the introduction of article 119 EEC. It was for the

Member States to implement this treaty provision by 31 December 1962. However as this

date was coming closer it became more obvious that most Member States hadn’t taken any

action so far. Consequently, the Council of Ministers introduced a new timetable on the

31st of December 1961. Three stages had to lead to a complete abolishment of pay

discrimination by 31 December 1964. Later on it seemed as if this timetable had been

forgotten and the Member States had made little change. 65

Even when the principle aim of the equal pay provision was purely economic, it was more

and more perceived as a social twist on which the European Institutions were not going to

give up so easily. Ever since the introduction of article 119 EEC various actions have been

taken to reduce the gender pay gap in the EU. What those actions are will be looked at in

the following sections, but first the content of the treaty provision will be set out.

5 Phase 1: hard law

5.1 Treaty provision on equal pay

As it has just been set out the principle of equal pay was already mentioned in the Treaty of

Rome, namely in article 119 EEC.66

When the Treaties were renumbered for the first time article 119 EEC became article 141

EC. However not only its numbering changed, but also the content had been adjusted.67

First of all it was not only for equal work that the principle of equal pay for men and

women had to be applied but also for work of equal value. This has been added to the first

paragraph of the provision.

Secondly it has been added that the Council and the Parliament have to ensure that the

principle is effectively applied. This provides the European institutions with the powers to

64

Ephron, Susan H. “The Equal Pay Guarantee in the EEC.” Comparative labor law 7.2 (1986): 205 65

Warner, Harriet. “EC Social Policy in Practice: Community Action on behalf of Women and its Impact in

the Member States.” Journal of Common Market Studies 23 (1984): 142-144 66

Treaty establishing the European Economic Community [1957] (not published), art 119. 67

Treaty establishing the European Community (Amsterdam consolidated version) [1997] OJ C340/173, art

141.

25

create secondary legislation on the subject. However, before creating such legislation the

Economic and Social Committee had to be consulted.

Lastly a fourth paragraph had been included which allowed the Member States to adopt

positive discrimination. As a result, the Member States could bring the under-represented

sex at a more equal level by providing them with certain advantages or giving them some

kind of compensation for the disadvantages they had suffered.

The need for a clear provision on positive discrimination with regard to unequal pay had

been demonstrated by the Marschall case (C-409/95) where it was questioned before the

Court if priority to a woman could be given if for the other criteria both the male and

female candidate scored equally high. Here it was said that such a system can be allowed

as long as priority to a woman is not given automatically but that all candidates and criteria

are being considered. 68

Despite the judgment it remained rather vague which criteria

should be used to distinguish allowed forms of positive discrimination from those which

are not.69

In the Treaty as we know it today the provision on equal pay for men and women has been

copied in article 157 TFEU. Compared to the text in the EC Treaty little has changed. The

only amendment that has been made is on the paragraph which grants the Council and

Parliament the power to ensure the application of this Treaty provision. Now the European

Parliament is specifically mentioned as well as the words ‘ordinary legislative procedure’

while in the previous version this was only implicitly implied in the reference to article 251

EC.70

5.2 Directives

Directive 75/117/EEC of 10 February 1975 on the approximation of the laws

of the Member States relating to the application of the principle of equal pay

for men and women

Following the introduction of article 119 EEC in the Treaty of Rome it soon became clear

that it was imprecise what this provision meant in practice.71

Furthermore Member States

only slowly seemed to implement the Treaty provision and as a consequence various

deadlines were missed. 72

Nevertheless in 1961 the Social Affairs Commission issued a questionnaire to all six

Member States asking them whether they had implemented the principle of equal pay.

They all stated that this had happened in their country. However the wage differences

68

Case C-409/95 Marschall v Land Nordrhein-Westfalen [1997] I-6363, para 35. 69

Foubert, Petra. “Het discriminatieverbod in de arbeidsrelatie. Een overzicht van de relevante

Europeesrechtelijke bepalingen.” Oriëntatie: Sociaal Recht, Personeelsbeleid 32.8-9 (2002): 203 70

Consolidated version of the Treaty on the Functioning of the European Union [2007] OJ C326/1 71

Ephron, Susan. H. op. cit. 198-199. 72

Ephron, Susan. H. op. cit. 199.

26

between men and women within the Community had remained practically unchanged. This

raised serious doubts on the correctness of the government’s response. 73

As a result of this slow response by the Member States to the equal pay provision, the

European Commission announced that it would submit a Directive on this subject to the

Council of Ministers. Once the Directive would have been introduced this would then

allow the Commission to start infringement proceedings against the Member States who

still failed to comply.74

This proposal for a Directive was approved by the Council in February 1975, having the

Directive 75/117/EEC on the approximation of the laws of the Member States relating to

the application of the principle of equal pay for men and women as a result. 75

This

Directive forms the subject of the current paragraph.

As it was already stated the main aim of introducing this Directive was to facilitate a more

practical application of the article 119 EEC. 76

Next to making the equal pay principle, as it was mentioned in the Treaty of Rome, more

practically applicable this Directive also aimed at creating a more harmonised framework

for its application as there were still big differences between the various Member States.

In article one of the Directive the following is mentioned: “The principle of equal pay for

men and women outlined in Article 119 of the Treaty, hereinafter called ‘principle of equal

pay’, means for the same work or for work to which equal value is attributed, the

elimination of all discrimination on grounds of sex with regard to all aspects and

conditions of remuneration.”.77

Having no discrimination on grounds of sex in any aspect

or condition of remuneration is of course fundamental if an equal pay for men and women

wants to be guaranteed but what is remarkable here, is the reference to “the same work or

work of equal value”. By stating this, the Directive seems to expand the basis for

comparison in determining equality as the provision only made reference to equal work.78

Although it should be kept in mind that the European Court of Justice made it very clear

that a Directive does not have the purpose of replacing a Treaty provision and thus does

not amend its content or scope. A Directive can merely strengthen its meaning. The Court

made this statement particularly with regards to Article one of the Directive and Article

119 EEC in the case Macarthys Ltd v. Smith (129/79).79

This means that applying equal

pay to work of equal value was also covered by Article 119 EEC even when it was not

73

Ephron, Susan. H. op. cit. 199. 74



Foubert, Petra. op. cit. 202. 77

Council Directive 75/117/EEC of 10 February 1975 on the approximation of the law of the Member States

relating to the application of the principle of equal pay for men and women [1975] OJ L45/19, art 1. (Council

Directive 75/117/EEC) 78


Case 129/79 Macarthys Ltd. v Mrs Wendy Smith [1980] 1276

27

directly stated therein. That the concept of equal pay also applied to cases where the work

of equal value was later on affirmed by the legislator self by including it in the text of

article 141 EC.

The first article of the Directive furthermore places great emphasis on the need to apply

this rule on non-discrimination related to one’s sex also in job classification systems.80

When applying the same reasoning as before leading to the inclusion of ‘work of equal

value’ in article 119 EEC this has the consequence that the prohibition of sex-based

discrimination as covered by this Treaty provision no longer seems to be limited to direct

or overt discrimination only. This is so because job classification systems are particularly

vulnerable for indirect discrimination and by seeing the rule in article one on those systems

as included in the article 119 EEC, indirect discrimination seems to be expanded to this

Treaty provision as well.81

Furthermore the Directive creates an obligation for the Member States to ensure that

individuals who believe that they have been subject to wage discrimination get the

possibility within the national legal system to start a judicial process on this matter.82

Related to the foregoing individuals lodging a claim within the undertaking for which it is

working or starting any legal proceeding to obtain the equality guaranteed by the 119 EEC

provision, should be protected against dismissal by their employer.83

As article five is about offering individuals protection when they start a legal proceeding,

this already indirectly implies that a legal proceeding can be commenced. In that way it can

thus be questioned whether an explicit article on this, as it has been done in article two, is

still necessary. Nevertheless article two can still be valuable as to guarantee that Member

States are implementing in their national legal systems a provision which is not only purely

administrative but which can really be relied on in practice.84

For individuals to start a claim on equal pay they should first of all be aware of the fact that

they have a right to be equally paid as their male colleague. As a consequence it is for the

Member States to bring the Treaty provision to the attention of its citizens.85

Additionally Member States should erase any legal provision which stands in contrast to

the equal pay principle and declare null and void any or amend any provision contrary to

80

Council Directive 75/117/EEC, art 1. 81

Banks, Karen. “De gelijke beloning. Artikel 119 van het E.E.G.-Verdrag en richtlijn 75/117 betreffende het

nader tot elkaar brengen van de wetgeving der lid-staten inzake de toepassing van het beginsel van de gelijke

beloning voor mannelijke en vrouwelijke werknemers.”Arbeidsblad (1990): 504. 82



Banks, Karen. op. cit. 502. 85

Council Directive 75/117/EEC, art 7.

28

the principle of equal pay in any collective agreement, wage scales, wage agreements or

individual contracts of employment.86

In general members of the Community have to ensure that the principle of equal pay for

men and women is respected and have to take all the measures which it considers

necessary for this and those measures should be effective.87

In a later stage the European Court of Justice clarified that the ‘effectiveness’ which is

stated in article six implies that Member States have to reconsider their national rules on

the burden of proof as to ensure that the principle of equal pay can effectively be

enforced.88

The success with which the Member States comply with the Directive varies. The

European Commission explicitly approved the Dutch Law of 1975 and the Irish

Employment Equality Act of 1977. In comparison with these two countries the

formulations by the other Member States appeared ineffective even though they were

technically sound. 89

It is particularly clear that when Member States just copy-pasted the content of the 1975

Equal Pay Directive, this merely constitutes an empty promise. This is so because by

simply reiterating the guarantees as they are mentioned under the Directive, Member States

didn’t have to thoroughly discuss the methods and assumptions used for valuing a job.

Those countries were Belgium, Greece and Luxembourg. 90

Directive 2006/54/EC of the European Parliament and 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)

During the years various Directives have been created that cover equal treatment for men

and women. The Equal Pay Directive of 75/117/EEC discussed in the previous section was

only one of them. Because of this wide variety in secondary legislation on the matter and

the various amendments that had been made to the Directives in question, it was found

necessary to bring them together in one single document. This would not only enhance

clarity but was also a possibility to take up the recent case-law of the CJEU. 91

As a result

the Directive 2006/54/EC has been enacted.

86

Council Directive 75/117/EEC, arts 3,4. 87


Case 109/88 Handels- og Kontorfunktionaerernes Forbund I Danmark v Dansk Arbejdsgiverforening,

acting on behalf of Danfoss [1989] 3220, para 14. 89


Eprhon, Susan. H. op. cit. 206-207. 91

Foubert, Petra. “Gelijke Beloning Voor Mannelijke en Vrouwelijke Werknemers.” Tijdschrift Voor

Europees en Economisch Recht- Sociaal Economische Wetgeving 10 (2013): 453.

29

The purpose of this Directive has been set out in article 1:

“The purpose of this Directive is to ensure the implementation of the principle of

equal opportunities and equal treatment of men and women in matters of

employment and occupation.

To that end, it contains provisions to implement the principle of equal treatment in

relation to:

(a) Access to employment, including promotion, and to vocational training;

(b) Working conditions, including pay;

(c) Occupational social security schemes.

It also contains provisions to ensure that such implementation is made more

effective by the establishment of appropriate procedures.”92

Of course the focus of this study is on equal pay for men and women, which constitutes

only one element of equal treatment of men and women in employment and occupation. It

is then also only on this section that there will be focused in this paragraph.

Especially in comparison with the Directive 75/117/EEC some novelties and clarifications

can be found.

A first clarification can be found in paragraph 9 of the preamble. There it is set out how

one should assess whether two jobs can be considered equal or of equal value. Several

factors have to be looked at. Those include aspects such as training, the working conditions

and the nature of the work. This illumination is the result of case-law by the Court. 93

Another aspect which the Court of Justice of the European Union made clearer over the

years, is that in certain circumstances the principle of equal pay can be expanded to

situations including multiple undertakings. This has been mentioned in paragraph 10 of the

preamble.94

It has also been explicitly stated that all forms of occupational pension constitute elements

of pay within the meaning of article 141 of the Treaty (former Article 119 EEC). This can

be found in paragraph 13 of the preamble.95

92

Directive 2006/54/EC of the European Parliament and the Council on the implementation of the principle

of equal opportunities of employment and occupation (recast) [2006] OJ L204/23, art 1. (Directive

2006/54/EC) 93

Directive 2006/54/EC, para 9 ; Case C-400/93 Specialarbejderforbunded i Danmark v Dansk Industri,

formerly Industriens Arbejdsgivere, acting for Royal Copenhagen A/S [1995] ECR I-01275. 94

Directive 2006/54/EC, para 10; Case C-320/00 A.G. Lawrence and Others v Regent Office Care Ltd,

Commercial Catering Group and Mitie Secure Services Ltd [2002] ECR I-07325. 95

Directive 2006/54/EC, para 13; Case C-262/88 Douglas Harvey Barber v Guardian Royal Exchange

Assurance Group [1990] ECR I-1889.

30

Additionally it is clearly stated that positive discrimination is allowed for the Member

States. When one sex has been oppressed in the past, a Member State may introduce

measures to bring the two sexes to a more equal level, thus giving particular advantages to

the under-represented sex.96

Furthermore it is noteworthy that as well in the definition of ‘pay’ under article 2 of the

Directive as in article 4 on the prohibition of discrimination with regard to equal pay, both

direct and indirect discrimination are openly mentioned.97

As it has been stated in the

previous paragraph on Directive 75/117/EEC this was not yet the case there and indirect

discrimination could only be read between the lines (ut supra).

Moreover the rights granted under article 2 of the Directive 75/117/EEC have been

expanded. Now individuals should also be given the possibility to start judicial procedures

for an unequal treatment even when the relationship in which the discrimination is alleged

has already come to an end.98

Next to this, associations, organisations and other legal entities are now also offered the

possibility to defend the right on equal treatment in court, either on behalf of or in support

of a complainant. 99

Nevertheless, Member States have the right to set a time limit within which actions for

equal treatment should be brought before court.100

On the contrary, with regard to article 5 of the Equal Pay Directive (75/117/EEC) little

seems to have changed. Only employee representatives have been added as an extra

protected group.101

Another novelty which has been introduced in this Directive compared to the Directive of

1975 is the article on compensation or reparation. Member States should ensure that

individuals who have been wronged are offered a real and effective compensation or

reparation in line with the damage that has been suffered. They are only allowed to set an

upper limit in cases where the only damage is the refusal by an employer to take

someone’s job application into consideration.102

Furthermore Member States have to ensure that the penalties which they provide for

infringing the principle of equal treatment are effectively applied with.103

96

Directive 2006/54/EC, para 22. 97

Directive 2006/54/EC, arts 2,4. 98

Directive 2006/54/EC, art 17.1. 99



Directive 2006/54/EC, art 24. 102


Directive 2006/54/EC, art 25.

31

With respect to article 3 and 4 of the Directive 75/117/EEC, which meant that Member

States should abolish, amend or declare null and void any legal provision which is contrary

to the equal pay principle, little has changed. The only thing that has been added here, is

set out in article 23(c) which states that occupational social security schemes containing

provisions contrary to equal treatment, may not be approved or extended by administrative

measures.104

It is also of importance that an article on the burden of proof has been introduced, namely

article 19. This was not the case for the Equal Pay Directive (75/117/EEC) which made it

unclear who carries the burden of proof and until what extend. With the introduction of this

article it is now known to everyone that it is for the plaintiff to first provide evidence from

which it can be presumed that he/she has been subject to direct or indirect discrimination.

Once this prima facia discrimination has been established, the burden of proof shifts to the

employer. It is then for the respondent to proof that the principle of equal treatment has not

been breached.105

Member States are furthermore allowed to introduce rules which make the burden of proof

for the plaintiff even less heavy to carry.106

However when it is for the court or competent body to investigate the facts of the case, the

rules in article 19 paragraph 1 need not to be applied.107

Also, unless otherwise provided for by the Member States, those rules shall not apply to

criminal procedures.108

The chapter on promotion of equal treatment and dialogue (chapter 2) is completely new

compared to the 1975 Equal Pay Directive.

It first of all obliges Member States to set up a so called ‘equality body’. This body shall be

responsible to promote, analyse, monitor and support equal treatment between men and

women throughout a state. Therefore it has the competence to support individuals in their

discrimination claim. It can also conduct surveys on discrimination or create reports and

recommendations on the subject. Lastly it is also responsible to provide the corresponding

European bodies with the necessary information. 109

Secondly social dialogue is strongly supported by the creators of this Directive. The

Member States are under a duty to promote social dialogue aiming at enhancing equal

treatment. Moreover the social partners should be stimulated to promote equality, flexible

104

Directive 2006/54/EC, art 23(c). 105





Directive 2006/54/EC, art 20.

32

working arrangements allowing a better work-life balance and to conclude anti-

discrimination rules within the context of collective bargaining. Of course, this should

happen in consistency with national traditions and practices. Furthermore employers

should be particularly encouraged to advance equal treatment for men and women. One of

the measures employers can undertake is providing their employees with appropriate

information on the matter. This information can reflect the gender division within the

company, the pay differentials and measures which can be used to improve the situation on

equal treatment between men and women. 110

.

As a response to this article of the Directive 2006/54/EC various countries have adopted

legislative instruments addressed specifically to employers with the aim of stimulating

them to play a more active role in addressing the issue of the gender pay gap.111

Also dialogue with non-governmental organisations is encouraged.112

A last remark to the Directive is that it only creates minimum obligations so that Member

States are free to offer an even more favourable protection than what is created by this

Directive. Furthermore the provisions with regards to the protection of women, especially

when they are pregnant or take maternity leave, remain unaffected. Also the framework

agreement on parental leave which was concluded by UNICE, CEEP and the ETUC

(Directive 96/34/EC) is not covered by the provisions in this Directive, nor is the Directive

on the introduction of measures to encourage improvements in the safety and health at

work of pregnant workers and workers who have recently given birth or are breastfeeding

(Directive 92/85/EEC). This is mentioned under article 28 of the 2006/54/EC Directive.113

5.3 Case law

Next to the Treaty provisions and Directives also the Court of Justice of the European

Union played a significant role in creating a clear framework within which the gender pay

gap within the European Union can be addressed. Discussing all the cases with regard to

equal pay would bring us too far. Therefore the cases which can contribute most to the

understanding of the equal pay principle are addressed here.

Direct effect of article 119 EEC

The landmark case with regard to equal pay, is the Defrenne II case (43/75).114

Ms.

Defrenne was a flight attendant who had been working for Sabena Belgian Airways. She

claimed an infringement of article 119 EEC with regard to the salary she received, her

severance pay and pension. Furthermore she wanted the Royal Decree of December 1969

to be annulled which served as a legal basis for the pension scheme at Sabena. This scheme

110

Directive 2006/54/EC, art. 21. 111



Directive 2006/54/EC, arts 27.1, 28. 114

Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 456

33

made it mandatory for women to retire once they reached the age of 40 while men could

still continue working.115

In this case the Court found that the Treaty provision was

sufficiently clear, precise and unconditional to allow for it to have direct effect.116

This

decision by the CJEU implies both direct vertical effect (private person v public authority)

and direct horizontal effect (private person v private person).117

As a consequence article

119 EEC can now be relied upon by an individual in a national court and thus serves as a

strong element for the enforcement of the equal pay principle.118

Because the Court of Justice soon realized the far reaching effect of its judgment it tried to

limit the impact in two ways. First the Court limited the retroactive effect of its decision by

saying that claims before April 1976 could not rely upon this decision. Only when

proceedings had already been started, an exception could be made. Secondly the CJEU

redefines the scope of article 119 EEC, stating that it only covers forms of direct or overt

discrimination. This seems to do away with was mentioned under the paragraph on the

Directive 75/117/EEC (ut supra) where the article 1 of the Directive seemed to imply that

article 119 EEC also covered indirect forms of discrimination. Furthermore the Court

repeated that the article only covers aspects of discriminatory inequality in pay while equal

terms of employment or treatment are not covered by it.119

In this case the Court thus also addresses the concept of direct and indirect discrimination.

In paragraph 18 the following is mentioned: “For the purpose of the implementation of

these provisions a distinction must be drawn within the whole area of application of Article

119 between first, direct and overt discrimination which may be identified solely with the

aid of the criteria based on equal work and equal value referred to by the article in

question, and, secondly, indirect and disguised discrimination which can only be identified

by reference to more explicit implementing provisions of a Community or national

character.”120

It is furthermore of importance to state that the Defrenne case was the first important case

on the equal pay Treaty provision that was brought before the Court of Justice. When the

preliminary questions were raised before the Court this might have set some extra pressure

on the European institutions to adopt the Equal Pay Directive (75/117/EEC). 121

115

Ephron, Susan H. op. cit. 203. 116

Foubert, Petra. (2013) op. cit. 201;

Erphron, Susan H. op. cit. 203. 117


Hervey, Tamara K. “Thirty years of EU sex equality law: looking backwards, looking forwards.”

Maastricht Journal of European and comparative law 12.4 (2005): 319. 119

Ephron, Susan H. op. cit. 204. 120

Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 456,

para 18. 121

Foster, Nigel. EU law directions. Oxford University Press, 2012 : 374.

34

The double aim of article 119 EEC

Another important aspect of the Defrenne II case (43/75) is that it explicitly refers to the

double aim pursued by the introduction of article 119 EEC in the Treaty of Rome. As has

already been mentioned under the paragraph with regard to the history of the principle of

equal pay, article 119 EEC first of all pursues an economic aim. By the inclusion of the

equal pay principle in the Treaty of Rome, a situation of unequal competition was avoided.

However, secondly the social aim of the article 119 EEC is mentioned. The introduction of

an equal pay provision in the Treaty fitted within the social objectives pursued by the

Community that seeks to ensure social progress and constant improvement of the living

and working conditions of its citizens.122

Furthermore the Court of Justice emphasized in paragraph 12 that the principle of equal

pay between men and women for equal work or work of equal value, forms part of the

foundations of the Community.123

Later on the Court of Justice even held that the economic aim was subordinate to the social

aim in the Schröder case (50/96)124

Scope of the equal pay provision

In Defrenne III the Court of Justice had to deal with the question whether the situation

where female workers were obliged to retire at the age of 40 while men were allowed to

continue working, could be addressed under article 119 EEC. Here the Court firmly

mentioned: “Article 119 of the EEC Treaty, which is limited to the question of pay

discrimination between men and women workers, constitutes a special rule, whose

application is linked to precise factors. It cannot be interpreted as prescribing, in addition

to equal pay, equality in respect of the other working conditions applicable to men and

women. The fact that the fixing of certain conditions of employment- such as a special age-

limit- may have pecuniary consequences is not sufficient to bring such conditions within

the field of application of article 119, which is based on the close connection which exists

between the nature of the services provided and the amount of remuneration.”.125

So in

other words working conditions other than pay cannot be addressed under article 119 EEC.

The conception of ‘pay’ by case-law

What can be considered by ‘pay’ has been one of the main questions with which the Court

of Justice of the European Union had to deal.

122

Banks, Karen. op. cit. 496; Case 43/75 Gabreille Defrenne v Société anonyme belge de navigation

aérienne Sabena [1976] ECR 456. 123

Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR 456,

para 12. 124

Case C-50/96 Deutsche Telekom AG v Lili Schröder [2000] ECR I-774, para 57. 125

Case 149/77 Gabrielle Defrenne v Société Anonyme Belge de Navigation Aérienne Sabena [1978] ECR

1365

35

When the case-law over the past years is analyzed it can be noticed that the concept of

‘pay’ is much broader than only a basic salary. Already in Defrenne I (80/70) the

relationship between ‘pay’ under article 119 EEC and social security schemes was

discussed. There the Court stated: “the concept of pay as defined in article 119 of the EEC

treaty does not include social security schemes or benefits directly governed by legislation

without any element of agreement within the undertaking or the occupational branch

concerned, which are obligatory applicable to general categories of workers or which,

within the framework of such a general system established by legislation, relate to certain

categories of workers in practice. This applies especially to retirement pension schemes

which give workers the benefit of a legal system, the financing of which, workers,

employers and possibly the public authorities contribute in a measure determined less by

the employment relationship between the employer and the worker than by the

considerations of social policy.”126

Despite this judgment questions with regard to pension schemes remained to appear before

the Court. A good example thereof is the case of Bilka-Kaufhaus GmbH v Karin Weber

von Hartz (170/84) where a female employee of the Bilka-Kaufhaus alleged that the

principle of equal pay was violated because in order to get access to a pension scheme the

person had to have worked fulltime for a certain period of time and it were mainly women

who were working part-time and thus affected by this rule. Preliminary questions on that

regard where referred to the Court of Justice. This Court found that the pension fell within

the scope of article 119 EEC as it formed an integral part of a contractual agreement and

the benefits were financed by the employer solely.127

To finally make an end to the confusion on what forms of pension schemes can be

considered as ‘pay’ under article 119 EEC and which not, the Court of Justice used the

Barber case (262/88) in 1988 to set out some clear rules on this matter. Several conditions

are mentioned by the Court in order for a pension scheme to fall within the scope of article

119 EEC. First of all the scheme should be the result of either a unilateral decision by the

employer or should be the element of an agreement made between the employer and the

employee. Secondly the financial sources for the pension scheme should be contributed

solely by the employer or shared by the employer and the worker. Another condition is that

the connection to the pension scheme has to derive from the employment relationship with

the employer in question meaning that it is not applicable to general categories of workers.

Whether the pension scheme is set up in the form of a trust is irrelevant because article 119

EEC also covers benefits which are received only indirectly from the employer. Also it

126

Case 80/70 Gabrielle Defrenne v Belgian State [1971] ECR 445 127

Case 170/84 Bilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1620

36

doesn’t matter if the contributions to and the payments of the pension scheme replace a

part of the general statutory pension scheme.128

Another element which was considered as pay is overtime supplements. This was made

clear in the Voβ judgment (C-300/06). This case is about a woman working part-time as a

teacher for Land Berlin. When she works overtime the pay she receives is lower than what

a full-time employer would receive for the same number of hours worked. She claimed that

this was contrary to article 141 EC (former article 119 EEC) as mainly women were

affected by this measure. It is true that women were the dominant group working part-time

in this situation. The Court of Justice was of the opinion that such a rule could lead to

indirect discrimination if indeed a higher proportion of women compared to men were

affected by the measure and that this issue was covered by article 141 EC if it could not be

objectively justified.129

Other benefits which have been considered by the Court as pay include: special bonuses

paid by the employer130

, provision of travel facilities131

, compensation for attending

training courses132

and termination payments in case of dismissal133

.134

Remarks with regard to comparators

Furthermore it was questioned before the Court with whom a person should compare

himself to establish an equal pay case.

With regard to the timeframe, the case of Mrs. Wendy Smith (129/79) can be referred at.

Mrs. Wendy Smith was working in a stockroom of Macarthys LtD and claimed that she

was paid less than her male predecessor. According to her this constituted a violation of the

equal pay principle for men and women. So in fact the Court of Justice was confronted

with the question whether a comparison with a former employee can be made to ascertain

that a difference in pay is discriminatory. The Court here held that there is no temporal

limitation to the persons with whom someone can compare him-/herself as to determine

whether equal pay for equal work has been provided. Nevertheless for cases of

discrimination falling within the direct application of article 119 EEC, comparisons are

limited to situations where concrete appraisals of the work that is actually performed by the

employees of different sex within the same establishment or service can be made.135

As a

consequence a comparison with a hypothetical person cannot be made.

128

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

1889, paras 24-29. 129

Case C-300/06 Ursula Voβ v Land Berlin [2007] ECR I-10573, para 44. 130

Case C-333/97 Susanne Lewen v Lothar Denda [1999] ECR I-7243 131

Case 12/81 Eileen Garland v British Rail Engineering Limited [1982] ECR 359 132

Case C-360/90 Arbeiterwohlfahrt der Stadt Berlin e. V. v Monika Bötel [1992] ECR I-3589 133

Case C-33/89 Maria Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591 134

Burri, Susanne and Sacha Prechal. EU Gender Equality Law. Luxembourg: Office for Publications of the

European Communities, 2008: 6. 135

Case 129/79 Macarthys LtD v Wendy Smith [1980] ECR 1275

37

Based on the foregoing it can be concluded that the time span within which a comparison

for equal pay can be made is currently limited to the present and the past.

That a comparison with a hypothetical situation is not allowed for equal pay cases is rather

remarkable as this is allowed for other equal treatment matters. Nevertheless the position

of the European institutions on this matter might be changing as in the 2006 Recast

Directive (2006/54/EC) the definition of direct discrimination mentions the words ‘would

be treated’. This was not yet the case under the 75/117/EEC Directive.136

Another question which is of importance to know with whom a comparison can be made is

whether or not this is limited to situations where both parties are working for the same

employer. In the judgment for the Lawrence case (C-320/00) it has been said that the scope

of article 141(1) EC is not limited to situations under the same employer but also in cases

where the basis for discrimination can be found within legislation or a collective labour

agreement. Also where the work is carried out in the same establishment or service,

making a claim on the basis of article 141(1) EC seems possible. The only condition is that

the difference in pay can be connected to a single source.137

Investigatory scheme

To test whether or not wage discrimination occurred, the Court of Justice developed an

investigatory scheme. A clear overview of this scheme is given in the Brunnhofer case (C-

381/99).138

The test used here is somewhat different from other discrimination tests

developed by the Court. It namely does not make any distinction between direct and

indirect discrimination and it also doesn’t focus on the discriminatory element itself. 139

According to this test it will first have to be proven that there is a difference in pay

between male and female workers. Then it will have to be assessed whether the work

performed is equal or of equal value. Therefore various elements have to be considered.

Among them is the nature of the activities with which the employees are occupied, the

skills required and the working conditions. If the employee can establish a prima facie case

of wage discrimination, the burden of proof shifts to the employer. It is now up to him/her

to show that the case can be rejected either by indicating that the work is not equal nor has

an equal value. Another way for the employer to reject the case is by proving that there is

an objective justification which is in no way related to discrimination on grounds of sex.140

136

Paul Epstein QC. “Equal Pay For Work of Equal Value.” 2013. 8. 137

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

Mitie Secure Services Ltd [2002] ECR I-7325 138

Case C-381/99 Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG [2001] ECR I-04961 139

Foubert, Petra. (2013) op. cit. 453.; Case C-381/99 Susanna Brunnhofer v Bank der österreichischen

Postsparkasse AG [2001] ECR I-04961 140

Foubert, Petra. (2013) op. cit. 453.

38

Even though the Court of Justice had set out this investigatory scheme for cases related to

wage discrimination, the European Court itself sometimes has difficulties following it.141

Assessing job classification schemes

In the Directives with regard to equal pay a particular emphasis is each time placed on the

job classification schemes. Those schemes need to based on the same criteria for both men

and women and need to be without any sex discrimination. However what if one element

seems to be more easy to attain for one sex than the others? This question was raised

before the Court of Justice with regard to a criterion of muscular demand or effort. Here

the Court ruled that using such a criterion in a job classification system is allowed with

regard to the nature of the tasks involved but nevertheless the system as a whole should

preclude discrimination on grounds of sex. In other words it also had to include variables

for which women were particularly gifted. 142

6 Phase 2: soft law

Next to only hard legislation the European institutions have also been relying on various

‘soft measures’ or also called ‘new governance’ mechanisms to bring the wages between

men and women at a more equal level.143

The concept of new governance ‘has been

developed to explain a range of processes and practices that have a normative dimension

but do not operate primarily or at all through the formal mechanisms of traditional

command-and-control-type legal institutions’.144

The move away from hard legislation can be explained by a general rejection of the

legislative approach. There is a general trend away from those hard legislative measures

towards more soft measures. This trend does not necessarily mean that a legislative

approach is no longer applicable for this subject but has more to do with a new method

used by the European institutions.145

However using such soft measures is especially valuable where the EU is lacking

competence to introduce hard legislation. Nonetheless there is still little understanding on

how those new governance systems interact with the hard law of the classic Community

method. Despite this uncertainty a mix of both methods is probably most valuable to solve

complex social problems, such as the gender pay gap.146

With regard to the gender pay gap using soft measures also seems to be in line with the

2006 Recast Directive on the implementation of the principle of equal opportunities and

141

For example Case C-427/11 Margaret Kenny and others v Minister for Justice, Equality and Law Reform,

Minister for Finance and Commissioner of An Garda Síochána [2013] ECR 1 142

Case 237/85 Gisela Rummler v Dato-Druck GmbH [1986] ECR 2101 143

Hervey, Tamara K. op. cit. 317. 144

De Búrca, Graínne and Joanne Scott. “New Governance, Law and Constitutionalism.” de Búrca, Graínne

and Joanne Scott. Law and New approaches to Governance in the EU and the US. 2006: 3 145


Hervey, Tamara K. op. cit. 321.

39

equal treatment of men and women in matters of employment and occupation (Directive

2006/54/EC) which already placed the ball in the court of the Member States encouraging

them to take adequate measures and foreseeing a more active role for the social partners (ut

supra 5.2).147

In this part of the paper several soft measures addressing the gender pay gap will be looked

at.

European Employment Strategy

A first initiative addressing the gender pay gap is the European Employment Strategy. This

strategy has been created by the European Council in 1997 at the Luxembourg Jobs

Summit to address the high unemployment problem. As a consequence of the Treaty of

Amsterdam ‘employment’ has become a responsibility of the European Community. The

aim of the European Employment Strategy is to create more coordination between the

various national employment policies. Therefore a set of common objectives and targets

are put forward towards which the Member States have to work. 148

Those objectives and targets are centred on four pillars:

Employability

Entrepreneurship

Adaptability

Equal opportunities149

The European Employment Strategy is composed out of four components:

Employment guidelines:

common priorities for Member States’ employment policies, drawn up by the

Commission

National Action Plans (NAPs) for employment:

implementation of the common Guidelines at national level

Joint Employment Report:

summary of the National Action Plans, to be used as a basis for drawing up the

following year’s Guidelines

Recommendations:

the Council adopts country-specific recommendations by a qualified majority150

147


Directorate-General for Employment, Social Affairs and Equal Opportunities unit D.2. Ten years of the

European Employment Strategy (EES). Luxembourg: Office for Official Publications of the European

Communities, 2007: 1-7. 149

Ibid. 9 150

Ibid. 5

40

In 1997 addressing the ‘gender gap’ was mentioned under the ‘equal opportunities’ pillar

but the pursuit for gender equality has been extended over the years. Already in the 1999

guidelines it was recommended for all policies, regardless of pillar, to be gender

mainstreamed.151

Another element that was addressed under the ‘equal opportunities’ pillar is ‘segregation’.

As it was already discussed earlier segregation constitutes one of the roots of the gender

pay gap (ut supra 2.2). Acknowledging this problem under the European Employment

Strategy can thus also help to lower the gender pay gap. Nevertheless this should be

handled with the necessary care. For example Denmark, Finland and Sweden were

considered as examples of countries with a high level of segregation, which is seen as

problematic, but at the same time these countries have one of the highest female

employment rates. This high female employment rate is partially explained by the high

level of education among women in those countries. So before trying to reduce the

segregation in all countries the entire context should be considered. It namely has to be

avoided that a reduction of the gender segregation affects positive aspects such as the high

level of education and the high rates of female employment. Therefore it can be useful if

elements such as education are combined with information on segregation. Another remark

that can be made is that changing segregation seems to be easier for countries which

currently only have low rates of female employment. It speaks for itself that channelling

women into the labour market, ensuring desegregation, is easier than when women are

already dominant in certain parts of the economy.152

In 2003 the European Council of Ministers has created new guidelines for the European

Employment Strategy. Among those guidelines a requirement was set out which was

mentioning the following: “With a view to its elimination, policies will aim to achieve by

2010 a substantial reduction in the gender pay gap in each Member State.” This can seem

very ambitious but when it is kept in mind that the initial proposal suggested a 50%

reduction of the gender pay gap, the wording of the requirement seems very vague and

without meaning. However before getting too pessimistic having this requisite is already a

big step forward as the 1997 guidelines had even less of a devotion towards the gender pay

gap.

Another obstacle in the way of having a ‘substantial reduction’ in the gender pay gap

seems to be the primarily supply-side approach of the European Employment Strategy. In

order to obtain this reduction it will probably not be enough to focus only on the

characteristics of female employees, their preferences and behaviour. Also aspects such as

pay policies, social norms and institutional arrangements will need to be looked at. Those

elements constitute the demand-side approach to solving labour market problems, which is

151

Rubery, Jill, et al. op. cit. i. 152

Rubery, Jill, et al. op. cit. 37.

41

rather absent from the European Employment Strategy framework.153

However the new

guidelines of the European Employment Strategy created in 2003 emphasise a

‘multifaceted approach’ for downsizing the gender pay gap. This in some way seems to

encompass some elements of the demand-based approach. For example the job

classification and pay systems are mentioned under the aspects which need to be addressed

as being one of the causes of the gender pay gap.154

Unfortunately the European Employment Strategy has been severely re-formulated in

2005. As a consequence reducing the gender pay gap is no longer considered as a separate

target. Instead it is now included in two more general guidelines. Furthermore there is no

longer a timeframe stated by which gender wage equality should be reached. As it seems

essential in order to raise awareness on the gender pay gap in national policies to have

those concrete objectives and timeframes, the European Employment Strategy no longer

seems to be the most appropriate instrument to reach gender equality on this matter.155

As a consequence new soft measures had to be created.

Communication on a Roadmap for equality between women and men 2006 -

2010

After the European Employment Strategy, the Communication on a Roadmap for equality

between men and women became the new main central document for action on the gender

pay gap.156

This Roadmap built further on the Framework Strategy for Equality between men and

women (2001-2005). The Strategy was meant as a contribution in the fight against gender

inequality in the economic, politic, civil and social life. On the one hand the Strategy had a

proactive approach, pursuing gender neutrality in all measures both at Community level as

for the Member States while on the other hand it introduced special measures to improve

the situation for women. The Framework Strategy covered five inter-related action

domains, being: promoting gender equality in economic life, promoting equal participation

and representation, promoting equal access and full enjoyment of social rights for women

and men, promoting gender equality in civil life and promoting change of gender roles and

stereotypes.157

Gender pay inequality was addressed in the section to promote gender

equality in civil life. It was suggested to revise the 75/117/EEC Directive and to reinforce

and grant new powers on equal pay to the labour inspectorate bodies. It was furthermore

153

Rubery, Jill, Damain Grimshaw and Hugo Figueiredo. op. cit. 184. 154

Ibid. 185 155

Plantenga, Janneke and Chantal Remery. op. cit. 7. 156

Smith. Mark. op. cit. 6 157

Communication from the Commission to the Council, The European Parliament, the Economic and Social

Committee and the Committee of the Regions – Towards a community framework strategy on gender

equality (2001-2005) [2000] 2000/335 final (COM(2000) 335 final)

42

suggested to offer training and specific information to social partners, labour inspectorates

and the legal profession.158

In the Communication on Roadmap for equality between women and men some

improvements following the 2001-2005 Frameworks Strategy were mentioned and six

priority areas were set out. For each of the areas some specific objectives and actions were

mentioned that could contribute to the implementation.

The areas were the following:

Equal economic independence for women and men

The reconciliation of private and professional life

Equal representation in decision-making

The eradication of all forms of gender-based violence

The elimination of gender stereotypes

The promotion of gender equality in third countries159

Under the first area reference was made to the gender pay gap where it was highlighted as

one of the key concerns.160

An important contribution of the Roadmap for the gender pay gap was the willingness of

the Commission to work together with Eurostat so that suitable data for measuring the pay

inequalities between men and women could be developed.161

Next to improvements for data monitoring another major outcome of the Roadmap was the

publication of a Communication on ‘Tackling the pay gap between men and women’. This

was issued in July 2007 and will now be looked at in more detail.162

Communication on tackling the gender pay gap between women and men

This Communication looked at the causes of the gender pay gap and mentioned actions

which could be taken to deal with this persisting gender pay gap. It basically sets out four

fields of action:

Ensuring better application of existing legislation

Fighting the pay gap as an integral part of Member States’ Employment polices

Promoting equal pay among employers, especially through social responsibility

Supporting the exchange of good practices between Member States, including

encouraging social partners to implement their framework of action163

,164

158

COM(2000) 335 final 159

Communication from the Commission to the Council, the European Parliament, the European Economic

and Social committee and the Committee of the Regions- A Roadmap for equality between women and men

2006-2010 [2006] 2006/92 final (COM(2006) 92 final) 160

COM(2006) 92 final 161


Ibid. 371

43

Report on the ‘Legal Aspects of the Gender Pay Gap’

Another non-binding document that has been created with regard to equal pay is the Report

on the ‘Legal Aspects of the Gender Pay Gap’. In 2007 the Commission’s Network of legal

experts in the fields of employment, social affairs and equality between men and women

decided to create a report in which an overview was given of all the legal measures on the

gender pay gap that had been introduced by the Member States. Nevertheless the document

does more than just giving an outline. It tries to reduce the discussion on equal pay for men

and women back to its core. It also looks at some best practices and tries to define how

legal instruments can still contribute to a reduction of the gender pay gap.165

European Parliament resolution of 18 November 2008 with recommendations

to the Commission on the application of the principle of equal pay for men

and women

In November 2008 the European Parliament had formulated some recommendations to the

European Commission with regard to the application of the equal pay principle. In total

nine recommendations had been formulated, namely:

Definitions

Analysis of the situations and transparency of results

Work evaluation and job classification

Equality bodies

Social dialogue

Prevention of discrimination

Gender mainstreaming

Sanctions

Streamlining of EU regulation and EU policy166

With regard to the definitions the European Parliament is of the opinion that the concepts

used in Directive 2006/54/EC can still be further clarified so that the principle of equal pay

becomes even more understandable.167

For the second point on the analysis of the situation and transparency of results it is

emphasised that discrimination still too often occurs without it being noticed either by the

employee or even by the employer. Therefore it seems advisable to create better statistical

163

Ibid. 373 164

Communication from the Commission to the European Parliament, the Council, the European Economic

and Social committee and the Committee of the Regions- Tackling the pay gap between women and men

[2007] 2007/0424 final (COM(2007)0424 final) 165

The Commission’s Network of legal experts in the field of employment, social affairs and equality

between men and women. “Legal Aspects of the Gender Pay Gap.” 2007. 166

European Parliament resolution of 18 November 2008 with recommendations to the Commission on the

application of the principle of equal pay for men and women (2008/2012(INI)) [2008] OJ C16E/21.

(European Parliament resolution of 18 November 2008) 167

European Parliament resolution of 18 November 2008. 24.

44

information on the gender pay gap. Companies can for example conduct pay audits and

provide information on wages for both sexes. 168

Thirdly work evaluation and job classification schemes are still frequently biased by

stereotypes to the disadvantage of female workers. Those schemes should thus be assessed

to ensure that the principle of equality is applied.169

As a forth element the role of equality bodies in addressing the gender pay gap is

mentioned. Those bodies should get more power enabling them to actively monitor, report

and enforce the principle of equal pay. An important characteristic of these bodies is that

they are supposed to act independently. 170

Furthermore the importance of social dialogue is highlighted. As it was already mentioned

before, pay scales and job classification schemes are not yet fully applying the equal pay

principle. Social partners have an important role to play in changing this situation. Also

elements such as parental leave or bonuses, which could contribute to a wider pay gap

should be covered in those social dialogues. 171

The sixth recommendation is on the prevention of discrimination. Here various measures

are being mentioned that can be undertaken by the Member States and the social partners

to attain that goal.172

Also with regard to gender mainstreaming the European Commission could play an active

role.173

To ensure that the principle of equal pay is effectively applied in the Member States, it is

of course important that the necessary sanctions are in place. Even though the Directive

2006/54/EC had already made some provisions on this subject, more specific sanctions

could be mentioned by the Commission. Among the propositions of the European

Parliament some harsh proposals were made. One of them is the exclusion from public

benefits and subsidies. Also the ‘name and shame’ procedure is proposed as a possible

sanction.174

The last recommendation made by the European Parliament focuses mainly on the link

between part-time work and the risk of being subject to unequal pay. It is suggested that

168

European Parliament resolution of 18 November 2008. 25. 169

European Parliament resolution of 18 November 2008. 25-26. 170





European Parliament resolution of 18 November 2008. 27-28.

45

the Directive on part-time work (Directive 97/81/EC) should be evaluated and possibly

revised.175

Council decision 2008/618/EC of 15 July 2008 on guidelines for the

employment policies of the Member States

Another initiative in which the gender pay gap is included is the Council decision of July

2008 in which guidelines for the employment policies of the Member States were set out.

Reference to the gender pay gap is made in guideline 18 on the promotion of a lifecycle

approach to work. There it is stated that measures should be taken in order to increase the

number of women on the labour market and that Member States should also strive to

reduce the gender gaps both in (un-)employment and in pay.176

European Commission’s awareness-raising campaign on the Gender Pay Gap

As the European Commission noticed that not everyone was aware on how much of a

problem the gender pay gap still was and that actions had to be continued, it decided to

launch an awareness-raising campaign in 2009. This campaign lasted for three years and

was marked by various events on which best practices could be shared and cooperation

enhanced. The campaigns aimed at a very wide public ranging from decision-makers,

academics and experts, NGO’s to the general public. Furthermore the contacts with the

social partners were considered to be important. As part of this awareness-raising

campaign a website had also been set up that provided information on the principle of

equal pay for men and women in twenty-two European languages. Moreover

advertisements were published.177

European Parliament Resolution of 10 February 2010 on equality b etween

women and men in the European Union

In the Resolution of 2010 the European Parliament makes it very clear that the gender pay

gap should be addressed more rigorously and that the Commission is carrying a

responsibility on that matter. The European Parliament starts with saying that women are

more vulnerable to poverty and that this risk is furthermore increased because of the wage

inequalities between men and women. Moreover the 2010 Resolution refers back to the

Resolution of November 2008 where the European Parliament had asked the Commission

to revise the existing legislation with regard to equal pay. The Parliament notes that

Commission hasn’t done this so far so it repeats its question. Other aspects which are

addressed in this 2010 Resolution that are indirectly related to the gender pay gap are the

problem of segregation in the job market and the work-life balance. With regard to the

gender segregation stereotypes need to be vanished so that both sexes can freely pursuit a

175


Council decision 2008/618/EC of 15 July 2008 on guidelines for the employment policies of the Member

States [2008] OJ L198/47 (Council decision 2008/618/EC) 177

Smith. Mark. op. cit. 373.

European Commission. Justice-Gender Pay Gap- What is the EU doing? Retrieved at 14 April 2015.

(http://ec.europa.eu/justice/gender-equality/gender-pay-gap/eu-action/index_en.htm)

http://ec.europa.eu/justice/gender-equality/gender-pay-gap/eu-action/index_en.htm

46

job of their free choice. One way of achieving this is by initiating awareness raising

campaigns. Additionally, a better balance of work and family life should be promoted in

the workplace. This does not only include the provision of flexible working arrangements,

child-care services,... but also creating better rules on parental leave for both the father and

the mother.178

Report: The Gender Pay Gap in Europe from a Legal Perspective (including

33 country reports)

In 2010 an update of the 2007 Report (‘Report on the Legal Aspects of the Gender Pay

Gap’) had been requested by the European Commission. According to the institution this

was necessary because the gender pay gap had remained more or less stable since 2007

despite the publication of the Report. The situation had even worsened in some countries.

In order to collect the required information to set up this new report a questionnaire had

been sent to legal experts of 33 states: the 27 EU Member States, Liechtenstein, Norway

and Iceland as well as the candidate countries. With this new report the Commission in

particular wanted to get an even better insight in the steps that have been undertaken by the

various states to deal with the gender pay gap in practice. Furthermore the Commission

tried to make a connection between equal pay and other areas of law. This was particularly

valuable because it provided insight into elements that could indirectly contribute to the

gender pay gap. For example, areas of law that were addressed in relation to equal pay

included part-time work, the work-life balance, unemployment provisions, etc.179

A Women’s Charter by the European Commission

Another document that has been created in 2010 which makes reference to the gender pay

gap is the Women’s Charter by the European Commission. With this Women’s Charter the

European Commission again emphasises its commitment towards genders equality in all its

policies. One of the important action fields on this matter is, according to the European

Commission, the equal pay principle. Again the Commission repeats that it will do all

within its powers to narrow this gap. The Commission wanted to strive to a substantial

reduction of the gender pay gap by the end of its term of office and acknowledges that this

will require an active participation by the Member States180

.181

178

European Parliament resolution 2010/C 341 E/08 of 10 February 2010 on equality between women and

men in the European Union [2010] OJ C341E/35 179

European network of legal experts in the field of gender equality. Op. cit. 180

Ibid. 3 181

Communication from the Commission A Strengthened Commitment to Equality between Women and

Men A Women’s Charter Declaration by the European Commission on the occasion of the 2010 international

Women’s Day in commemoration of the 15th

anniversary of the adoption of a Declaration and Platform for

Action at the Beijing UN World Conference on Women and of the 30th

anniversary of the UN Convention on

the Elimination of All Forms of Discrimination against Women [2010] COM(2010)78 final (COM(2010)78

final)

47

Strategy for equality between women and men 2010-2015

To put the words of the Women’s Charter into practice the European Commission has

worked out a sex equality strategy for the period of 2010-2015. As equal pay for men and

women of course forms one of the important requirements to attain full equality between

the both sexes, this also forms an essential part of the five-year strategy. After shortly

introducing the situation on the gender pay gap in Europe and giving some of its main

causes, the European Commission sets forwards some key actions which it considers

necessary to reduce the pay gap between men and women. From the actions that are

mentioned by the European Commission it can be noticed that the Commission aims at

tackling the problem as closely as possible to its main roots and the employees. Because of

this the social partners have to play a significant role. One of the aspects where they can

help is to make pay more transparent and to reduce the impact of atypical contracts on

equal pay. Also employers are actively involved in this discussion. Here it is recommended

to set up equal pay initiatives at the workplace. Furthermore also the employees themselves

can contribute to a reduction of the gender pay gap by stimulating women to choose less

female-like jobs. For those actions to be taken up by the various actors, it is essential that

they first get a clear picture of how big the problem is in Europe. In order to enhance this

awareness an Equal Pay Day has been introduced in the EU from 2011 onwards. This

shows how much longer women have to work to obtain the same average pay of men.182

Equality Pays Off project

Another awareness raising campaign that had been set up by the European Commission is

the ‘Equality Pays Off’ project’. This program was particularly targeted towards employers

because it is important for them to see why they should invest in reducing the gender pay

gap. In other words, what this could mean for their business had to be shown. During 2012

and 2013 numerous events have been organised in which the company leaders could

actively participate and information on the topic has also been provided.183

European Parliament resolution of 24 May 2012 with recommendations to

the Commission on application of the principle of equal pay for male and

female workers for equal work or work of equal value

Just as in 2008 and 2010 the European Parliament gave in 2012 some recommendations to

the European Commission on the application of the equal pay principle. Here again the

role of social partners is emphasised as well as the need for effective sanctions. What is

innovative in this Resolution is the mentioning of an EU award that could be created for

employers who are doing outstandingly well on women matters such as having women in

182

Communication from the Commission to the European Parliament, the Council, the European Economic

and Social Committee and the Committee of the Regions Strategy for equality between women and men

2010 -2015 [2010] COM(2010)491 final (COM(2010)491 final);


European Commission. Justice-Gender Pay Gap- What is the EU doing? Retrieved at 14 April 2015

(http://ec.europa.eu/justice/gender-equality/gender-pay-gap/eu-action/index_en.htm)

48

management positions and having a low gender pay gap. With this the European

Parliament tries to expand the idea of an award, which was considered as a best practice in

several Member States, to an EU level.184

It can be concluded that next to purely hard law various soft measures have been set up to

further contribute to the reduction of the gender pay gap. Those measures particularly

aimed at raising more awareness on the issue and also an active role for the social

problems has been mentioned on various occasions. From this it is clear that the European

institutions noted that having legal provisions in itself will not be enough to set the

multiple national actors to actively apply the principle. The problem needs to be addressed

at all levels ranging from national decision-makers to employers and employees

themselves. Because of the fact that pay is given in an employment context, for the pay gap

to vanish there needs to be a willingness for change and the knowledge has to be foreseen

especially in that context. It seems as if social partners can play a significant role on this

matter.

How exactly social partners can help to get to equal pay for men and women and what the

problems with this can be, will be discussed in the following section.

7 Phase 3: focus on social partners

Social partners are continuously more involved in the debate on equal pay for men and

women. For example the role for social partners in enhancing equality between men and

women was recognised in the European Employment Strategy.185

Also in the recast

Directive (2006/54/EC) the importance for Member States to promote social dialogue

between the social partners was highlighted.186

This increasing emphasis on social partners

stems from the recognition that in order to reduce the gender pay gap a multifaceted

approach is needed. Action should take place on all levels, involving all relevant partners

and focusing on all causes of the gender pay gap.187

Relying on social partners to change the issue of unequal pay is by some seen as a

consequence of a lack of willingness in the European Union to introduce new legislation

while others see the reliance on social partners as favourable. According to the last group

social partners are the actors that can finally break the stagnated evolution of the gender

184

European Parliament resolution of 24 May 2012 with recommendations to the Commission on application

of the principle of equal pay for male and female workers for equal work or work of equal value

(2011/2285(INI)) [2012] OJ C264E/75 185

European Foundation for the Improvement of Living and Working Conditions. strengthening and

mainstreaming equal opportunities through collective bargaining. Luxembourg: Office for official

publications of the European Communities, sd.: 2. (European Foundation for the Improvement of Living and

Working Conditions) 186

Directive 2006/54/EC of the European Parliament and 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) [2006] OJ L204/23, para 34. 187

European network of legal experts in the field of gender equality. op. cit. 3.

49

pay gap and having them on board is thus seen as crucial.188

First of all it has been found

that inter-sector industry wage differentials can explain a big part of the variations in the

gender pay gap across countries. As a consequence including social partners in the

discussion can help reduce this variation.189

Furthermore having social partners in your

organisation seems to lead to a reduction in the gender pay gap.190

After Maastricht the European social partners (both trade unions and employer

organisations) saw an increase in their policy making role at European level.191

Also the

various social partners in the Member States of the Union started to undertake numerous

actions to obtain gender equality in the workplace. Also towards equal pay for men and

women in particular, measures have been undertaken. Which actions can be undertaken by

social partners will be looked at in more detail in the sections below but in general it can

already be remarked that trade unions seem to be more willing to address the problem than

employer organisations.192

Joint initiatives and collective bargaining

In a report published by Eurofound nine actions which should be undertaken by social

actors on the matter of equal opportunities for men and women in the employment context

had been set out. These were the following:

“Social partners (at the appropriate levels) should:

Improve their expertise on equality issues by establishing equality officers or

expertise centres within their organisations at national, sectoral and/or company

level

Take positive action to ensure women’s proper representation within their

organisations and to improve women’s participation in the bargaining process both

in terms of quantity and quality

Develop equality guidelines or manuals for their negotiators, to promote equality

on the bargaining agenda and to help mainstream equality in all agenda items

Provide training to develop equality awareness of negotiators

Develop an equal opportunities scan as an instrument for gender-proofing

collective agreements

Ensure that agreements include provisions for implementation and monitoring

equality measures

188

Smith, Mark. op. cit. 375 189

Gannon, Brenda, et al. “Inter-Industry Wage Differentials and the Gender Wage Gap: Evidence from

European Countries.” The Economic and Social Review 38.1 (2007): 151-152 190

Ponzellini, Anna Maria, Christine Aumayr and Felix Wolf. op. cit. 29. 191

Dickens, Linda. “Beyond the business case: a three-pronged approach to equality action.” Human

Resource Management Journal 9.1 (1999): 16 192

Ponzellini, Anna Maria, Christine Aumayr and Felix Wolf. op. cit. 19.

50

Set up joint equality bodies on national, sectoral or company level with

responsibility for overseeing the implementation and elaboration of equality

provisions

Conclude general framework agreements on equality issues, in European, sectoral

and national level, as appropriate, to tackle, for example the gender pay gap or

sexual harassment

In order to integrate an equality perspective in all collective bargaining, focus, for

example, on the creation of good quality new jobs and on the inclusion of flexible

and part-time workers in all collective agreements”193

Even when those actions do not address the gender pay gap in particular, it can be

considered that their implementation can contribute to a better climate where unequal pay

would be less likely.

The social partners at European level (UNICE/UEAPME, CEEP and ETUC) created in

March 2005 a ‘Framework of Action on Gender Equality’ in which they express their

commitment towards reducing gender inequality. Therefore they’ve set out four priorities

on which the national social partners had to work during the five years following this

report. One of those priorities was tackling the gender pay gap. For this target they

indicated that it is especially important that the social partners at all relevant levels are first

of all well informed about the legislation which has already been adopted on equal pay and

are provided with guidance on how to best address this problem. Furthermore providing

clear statistics is seen as important. On the basis of this information the social partners gain

a better view on the different causes of the gender pay gap and can take actions

accordingly. Then it is up for the social partners to ensure that the pay systems are see-

through and do not contain any discriminatory elements.194

It then also seems that trade unions, employer organizations and single employers have

cooperated to enact measures that were aimed at the gender pay gap in particular. One of

these measures is the revision of job classification schemes. By this revision discriminatory

elements can be detected and eliminated. As a consequence these classification schemes

are less biased by stereotypes and thus more objective. Another common operation are

collective negotiations aiming to increase wages in sectors and occupations that are

female-dominated. Because women seem to be mainly active in low-paid jobs and sectors

a pay increase can bring them at a more equal level with their male counterparts.

Furthermore both parties of the industry can conclude joint statements and clauses having

equal pay as subject. For example it can be agreed upon that information on wage

differences will be provided within the organization and/or throughout the sector,

193

European Foundation for the Improvement of Living and Working Conditions. op. cit. 1. 194

ETUC, UNICE/UEAPME and CEEP. Framework of actions on gender equality. Brussels, 2005: 9-10

51

enhancing the transparency and making it easier for an employee to detect discriminatory

wage differences.195

One of the important instruments in the hands of the social partners to address the gender

pay gap is collective bargaining. It was already shortly mentioned before that through

collective bargaining it can be decided to increase the wages in female dominated sectors

and jobs but also setting a minimum wage can already improve the situation for female

workers. This again has to do with the segregation of the labour market where women

mainly dominate low-paid, low-valued jobs.196

As the determination of pay is one of the central aspects of the gender pay gap, it is

important that there is already at that level an awareness of the inequality otherwise

unequal pay will only be further institutionalized by collective agreements197

Through trade union participation in collective bargaining employees are given a voice to

express their needs and interests. So if enough women are presented in trade unions, this

could place unequal pay higher on the agenda for collective bargaining.198

Next to deciding on pay levels collective bargaining can also address the gender pay gap in

other ways like ensuring transparency and creating gender-neutral job evaluation

systems.199

In general collective bargaining is a valuable instrument because it allows for a more

flexible approach adapting the discussion on equal pay in accordance with the national

traditions, sectoral and local situation and the organizational culture in which it is

conducted. Furthermore agreements on equal pay that have been concluded through the

process of collective bargaining will be more easily accepted by the relevant parties as they

all took part in the discussion. As a consequence it will also be easier to enforce the

principles agreed upon in a collective agreement.200

It has furthermore been proven that countries characterised by a high level of statutory

protection are confronted with a smaller difference between male and female pay.201

Nevertheless it is important to keep in mind that collective bargaining should not be seen

as substituting legal provisions but rather as complementing them so that a legal

framework is still needed.202

195

Ponzellini, Anna Maria, Christine Aumayr and Felix Wolf. op. cit. 23-25. 196

European network of legal experts in the field of gender equality. op. cit. 12 197



Ibid. 6 200

Dickens, Linda. op. cit. 42-43. 201


Dickens, Linda. op. cit. 42-43.

52

Trade union initiatives

As it has already been said earlier, trade unions are supposed to be representing the

interests of the employees. If one of the group of employees feels disadvantages it gains a

voice through the trade unions. Specifically if women have the impression that their jobs

are undervalued compared to men or that generally their wages are lower without a clear

objective justification, they can speak more loudly because of the fact that trade unions are

present in the organisation.203

As a consequence trade unions can be extremely useful to raise awareness on gender

inequalities, such as a gender pay gap. This awareness-raising can even expand beyond the

walls of a single company or industry and be aimed at the general public. In order for the

trade unions to have such a strong voice they often conduct research which demonstrates

the relevance of tackling the gender pay gap.204

Furthermore to bring about change, training can be provided so that trade union officials

are better informed and skilled to deal with the subject205

.

Next to this, once the organisation has made a commitment to reduce the wage differences

between men and women, the trade unions can follow up the actions that are being

undertaken and can also provide some instruments to verify if for example wage structures

are gender neutral.206

Initiatives by employer organisations

Compared to trade unions employer organisations seem to worry less about unequal pay

for men and women. The fact is that employer organisations tend to think that the factors

causing the gender pay gap are to be found outside of the undertaking and that as a

consequence they have little power over it. So in other words they often ignore the fact that

there are also stereotypes and discriminatory practices allocated within the organisation.207

This ignorance can be worrying and therefore it is also good that trade union and employer

organisations meet and exchange information.

However when employers undertake measures to do away with inequalities they do this in

various ways. Examples can be the introduction of diversity management tools, enhancing

the progress of women to managerial positions, whether or not by quota, and trying to do

203

Ibid. 14. 204

Ponzellini, Anna Maria, Christine Aumayr and Felix Wolf. op. cit. 20. 205

Ibid. 21. 206


Ibid. 21;

Briskin, Linda and Angelike Muller. Promoting gender equality through social dialogue: Global trends and

persistent obstacles. Geneva: Industrial and Employment Relations Department International Labour Office,

2011: 10

53

away with stereotypes. Also measures to improve the work-life balance are common

among the initiatives by employer organisations.208

The European network of legal experts in the field of gender equality has also set out some

recommendations for Member States to stimulate actions by employers on equal pay.

Those included, among others, requesting employers to disclose gender-specific pay

statistics and making their pay systems more transparent. Governments can furthermore

introduce rules requiring undertakings to set up equality plans or can create some

awards/labels to reward companies who excel in tackling pay inequality.209

Weaknesses to the use of social partners

Nevertheless there are still some important weaknesses connected to the use of social

partners as the main actors for addressing the equal pay principle.

First of all social partners are not always evenly distributed across sectors, leaving some

sectors underrepresented. Especially sectors that are dominated by female workers tend to

be characterised by lower rates of unionisation (except for the public sector in some

Member States). Also trade union members are still too often male.210

As a consequence

issues which are of importance to women, such as equal pay, are not always articulated by

the social partners.211

These deficiencies are also noticed by the European Commission.212

Furthermore social partners may not always act objectively with regard to equal pay. For

example it are usually the social partners, instead of governmental bodies, who have to

examine and monitor collective agreements. As they have concluded those agreements

themselves it can be questioned whether they will have a critical standpoint.213

Moreover gender equality and equal pay in particular do not always appear to be most

pressing issue for social partners. Equal pay is often seen as something which the

government should deal with rather than something that has to be addressed during a

process of collective bargaining. Social partners seemed to be more concerned with

lowering unemployment rates than by levelling out pay differences between men and

women.214

The current economic climate also doesn’t seem to stimulate social partners to

208


European network of legal experts in the field of gender equality. op. cit. 14-17. 210

Ebbinghaus, Bernhard. “Trade Union’s changing role: membership erosion, organisational reform, and

social partnership in Europe.” Industrial Relations Journal 33.5 (2002): 470-471 211


The European Evaluation Consortium 2007. “Evaluation of the effectiveness of the current legal

framework on equal pay for equal work or work of equal value in tackling the gender pay gap (version of 19th

July 2009).” 2009: x 213


Soumeli, Eva and Kristine Nergaard. “Gender pay equity in Europe”. 29 January 2002. EurWORK.

Retrieved at 16 April 2015.( http://www.eurofound.europa.eu/observatories/eurwork/comparative-

information/gender-pay-equity-in-europe)

http://www.eurofound.europa.eu/observatories/eurwork/comparative-information/gender-pay-equity-in-europe

http://www.eurofound.europa.eu/observatories/eurwork/comparative-information/gender-pay-equity-in-europe

54

see the gender pay gap as a priority because other issues are considered to be more

pressing today.215

Nevertheless the view of social partners on inequality matters such as the unequal pay

seems to be changing. Social partners are being faced with various challenges, such as a

drop in trade union membership, which encourages them to change their strategy. An

important part of this change in strategy seems to be the inclusion of inequality on their

agenda. They consider this as providing them with more legitimacy.216

8 Further developments

During this paper it has become apparent that solving the difference in pay between men

and women is not an easy task. Various factors are underlying the gender pay gap which

makes it difficult to set out a right strategy. Because the problem is so complex, the

European Union has also started to change its policy response and moved from a simple

hard law mechanisms to an action program that involves all relevant parties. Especially the

role of the social partners has become more and more important.

Despite all these efforts the gap seems to remain rather stable and is now stuck at around

16%. The question can then also be raised on how to further reduce the inequality in wages

between men and women. There is most likely no straightforward answer to this question

and it will probably remain a trail-and-error process but nevertheless it can be useful to

make some recommendations for the future development.

Even though the use of hard law has moved to the background at a European level, its

importance may not be forgotten. The use of legal provisions creates a framework within

which all relevant parties can function. Those provisions can forbid certain practices such

as direct and indirect discrimination and then allow the legislator to verify whether the

parties are obeying the rules that have been set out.

In the upcoming years the legal framework can be of particular value to further enhance

the role of social partners and employers. Obligations on their part can be formulated and

employers can be held responsible to e.g. enact pay audits followed by an action plan to

reduce the pay differences that were found.217

. In the 2010 report by the European network

of legal experts in the field of gender equality it was found that almost none of the 33

countries to which the questionnaire was send, mentioned legal measures which stimulate

or oblige social partners to include the issue of the gender pay gap in collective

agreements.218

Knowing that the importance of social partners was explicitly mentioned in

215


Dickens, Linda. op. cit. 15-16. 217


between men and women. op. cit. 8. 218

European network of legal experts in the field of gender equality. op. cit. 14

55

the 2006 Recast Directive (2006/54/EC), it seems of importance that the European

institutions restate the importance hereof and further develop this principle.

However having all the legislation is only one side of the story. It is furthermore necessary

that the rules are effectively implemented and enforced by the Member States. The

European Commission has committed itself to oversee that the rules and obligations

mentioned in the Directive 2006/54/EC are correctly applied by the Member States.219

Nevertheless it appears that even when the legislation has been implemented by the

Member States, enforcement within a state is still troublesome. Only a few cases a year on

equal pay are brought before a national court. Still too often people do not even know that

their pay is discriminatory because of the lack of transparency. Moreover, even when it is

noticed, it remains difficult for the plaintiff to collect the necessary evidence.220

With regard to transparency the European institutions can stimulate Member States to

request clear wage statistics from the organisations. One particular method to obtain the

statistical information is through pay audits.221

Connected to this it should be promoted for

Member States to oblige the employers to set up action plans focusing on a reduction of the

gender pay gap. As it is not only easy for the employer or the social partners to know

which methods or tools they should use to assess pay systems, the EU can work together

with the Member States to develop and propose instruments that could facilitate this

analysis.222

A second issue for the enforcement of equal pay in the Member States was the heavy

burden of proof which the plaintiff is still carrying. Despite the shift of this burden to the

defendant as soon as a prima facie case of pay discrimination is established it remains

difficult for the plaintiff to collect sufficient evidence. It seems as if the provision in the

2006 Directive (2006/54/EC) which allows a Member State to lower the threshold for the

establishment of an unequal treatment case is not helpful enough. Another measure which

could make the burden easier to carry is the involvement of equality bodies and labour

inspectorates. These institutions can obtain the necessary data from the employer which

can then be used in equal pay cases. 223

Furthermore to ensure an effective application of the equal pay principles by the

undertakings, effective sanctions should be introduced in the national legislation of the

219

European Commission – DG Justice. Tackling the gender pay gap in the European Union. Luxembourg:

Publications Office of the European Union, 2014: 14. 220


between men and women. op. cit. 8 221




Ibid. 9.

56

Member States. Here again a provision on sanctions was included in the Directive of 2006

(2006/54/EC) but it has to be ensured that the Member States apply them effectively.224

Another aspect that is related to the gender pay gap and which has to be further addressed

at a European level is ensuring a good work-life balance. On this matter the European

Parliament suggested in 2008 that the Directive on part-time work (97/81/EC) should be

revised and evaluated.225

Also with regard to maternity leave/parental leave some more

guidance can be provided by the European legislator.226

Also the idea expressed by the European Parliament in its 2012 resolution to create some

kind of EU award or label for companies which are doing extremely well with regard to

equal treatment of men and women, is a measure which I consider worth pursuing.227

224


Ibid. 28. 226



European Parliament resolution of 24 May 2012. op. cit.

57

9 Conclusion

The reason why the gender pay gap seems to remain stable at around 16% can probably be

partially explained by the complexity of this concept. Consequently the European

institutions should rely on a multifaceted approach including all relevant actors at every

level of the Union.

The reason why the gender pay gap is such a complex problem is because it is constituted

and reinforced by multiple elements. In chapter two and three those factors have been

discussed.

It was found that women are mainly active in low-paid sectors of the economy and that

they struggle more to make progress in their career. This is especially true when career

progression is easily affected by stereotypes. However one stereotype seems to be

especially true: women are still the main care giver in a family. These care responsibilities

are negatively affecting a women’s wage. They take leave more often and prefer working

part-time. This leads to shorter periods of accumulated professional experience and

consequently their wages are lacking behind, compared to their male colleagues. Moreover

the gender pay gap seems to widen with age. Also a women’s education can play a role.

Especially when they are on one hand uneducated or on the other hand obtained a

postgraduate degree, the differences in wages with men are found to be higher.

Nevertheless the importance of personal characteristics in explaining wage discrepancies

between men and women has reduced. Also wage structures and company characteristics

can explain parts of the gender pay gap.

First of all internal valuation systems are still often biased due to stereotypes and social

norms. With regard to company characteristics, the gender pay gap tends to be lower in the

public sector. However the relationship between the size of a company and the gender pay

gap seems to be less clear. The same is true when the gender pay gap in industry and

services is compared.

Moreover it was found that collective bargaining at a central level and the introduction of

minimum wages had a beneficial influence on the gender pay gap.

In a first step towards tackling the gender pay gap the European Union can rely on a

profound basis of hard law. The principle of equal pay has always been part of the Treaty

and is now mentioned in article 157 TFEU. Moreover the Directive 75/117/EEC had been

created in order to make the principle more enforceable. However this Directive soon

seemed to be lacking clarity and was then also followed by numerous cases before the

Court of Justice. As a result in 2006 the Directive was extensively revised and extended. It

now is included in the 2006/54/EC Directive on the principle of equal opportunities and

equal treatment for men and women in matters of employment.

58

An important contribution of the case law was that the direct effect that has been provided

to the Treaty provision on equal pay. Next to this the Court of Justice was mainly

confronted with questions on what can be considered as ‘pay’, the scope of the equal pay

provision, with whom a comparison should be made and how an assessment should be

made.

Next to the hard law measures soft law measures are more often used by the European

institutions. With regard to the gender pay gap the reliance on soft law measures is in

accordance with the 2006/54/EC directive where a more active role for the Member States

and the social partners was already foreseen. Elements that frequently were put forward in

those soft law measures were the need for pay transparency, assessment of job

classification schemes and job evaluation schemes. Also awareness raising campaigns

were often mentioned as well as the exchange of best practices. Furthermore a more active

role for the social partners was referred at. First they should be provided with the necessary

training so that they can fulfil their role effectively. Then they should mainly help increase

the transparency and include equal pay in the collective bargaining process.

However there are still some important weaknesses to the use of social partners as the main

actors for addressing the gender pay gap. They are still too often dominant in mainly male

sectors and trade union members themselves are also very often male. Furthermore the

social partners may set their priorities differently leading them to rely on the government

for addressing the difference in pay between men and women. Nevertheless because the

social partners themselves are faced with a lowering of their legitimacy, addressing

inequalities in the workplace can consequently be seen as a means to boost their reputation.

Related to these weaknesses it remains important for the future that the legal framework is

maintained, if not even reinforced. More specifically obligations for the social partners can

be formulated. Moreover for all the measures enacted by the European institutions to work

effectively, it is necessary that the rules are effectively implemented and enforced by the

Member States. Here the European Commission continues to play an important role. Other

elements which should be further improved in the future is the continuously lack of

transparency as well as the heavy burden of proof carried by the plaintiff.

In order to improve the transparency the European institutions can stimulate Member

States to request clear wage statistics from the organisations. Also requesting pay audits

and action plans from those organisations can be valuable. Secondly instruments can be

developed at an EU level which could make such analyses more easily.

Secondly the burden of proof can be made less heavy to carry by enforcing the role of

equality bodies and labour inspectorates. Those institutions can be used as actors to collect

evidence more easily and they can also contribute in the proceedings.

59

It has been stated as well that in the future the provision of sanctions has to be further

developed and it has to be ensured that they are effectively applied.

Moreover ensuring a good work-life balance has to be further enhanced within the Member

States. An important first step that has been identified on this subject is the necessary

revision of the Directive on part-time work (97/81/EC).

LXI

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