The enforcement of the principle of equal pay for equal work or work of equal value: A legal analysis of the situation in the EU Member States, Iceland, Liechtenstein and Norway

Abstract

Sixty years after the principle of equal pay for men and women for equal work or work of equal value was first laid down in Article 119 of the EEC Treaty (currently Article 157 of the Treaty on the Functioning of the EU), the EU today faces a gender pay gap that has remained constant at a relatively high level for decades. The most recent Eurostat data show an average figure of 16.3 % (for the year 2015) for the 28 EU Member States.1 Although there is a big difference between the countries with the lowest pay gap (Italy and Luxembourg, both with 5.5 % in 2015) and the country with the highest pay gap (Estonia, with 26.9 % in 2015), and although these figures represent the so-called ‘unadjusted’ gender pay gap (i.e. not adjusted according to individual characteristics that may explain part of the difference),2 there are signs that all over Europe sex-based pay discrimination remains a problem that should not be underestimated. All of this is in strong contrast with the attention that all EU institutions have given to the equal pay principle over the previous decades. The EU legislator has refined the above-mentioned Treaty provision in the Equal Pay Directive 75/117/EEC,3 which has later on been replaced by Recast Directive 2006/54/EC.4 From the 1970s onwards, the Court of Justice of the EU (CJEU) has given the principle a boost through its many and at times innovative interpretations in preliminary rulings, which have apparently constituted a powerful tool for the uniform enforcement of the principle in the Member States. Also the European Commission has devoted its attention to the gender pay gap and has undertaken, at intervals, policy actions aimed at the dispersion of the principle that men and women should receive the same pay for equal work or work of equal value. In its recent Strategic Engagement for Gender Equality (2016-2019),5 the European Commission has again set the reduction of the gender pay gap as one of its five key actions. Also on the Member State level the gender pay gap has been the target of quite some activity. Depending on the country in question, such activity has been less, or more at the instigation of EU incitement. However, no matter how active a Member State has been until today with respect to the fight against the gender pay gap, it is certain that the principle of equal pay is, generally speaking, fully reflected in the legislation of the current 28 EU Member States. The same is true for the other three countries of the European Economic Area (EEA): Iceland, Liechtenstein and Norway. 6 Also on the national policy level attention has been paid to sex-based pay discrimination, with actions like the ‘equal pay day’ for example. However, it had already become apparent in the past that only very few claims of sex-based pay discrimination reach the national courts.7