Activities of Margarita DE LA PISA CARRIÓN related to 2021/0050(COD)
Plenary speeches (1)
Strengthening the application of the principle of equal pay for equal work or work of equal value between men and women (debate)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms
Amendments (139)
Amendment 150 #
Proposal for a directive
–
–
The European Parliament rejects the Commission proposal.
Amendment 151 #
Draft legislative resolution
Paragraph 1
Paragraph 1
1. Adopts its position at first reading hereinafter set out;Rejects the Commission proposal; (The European Parliamentary Research Service has identified numerous shortcomings in the Commission proposal. The proposal infringes the principles of subsidiarity and proportionality.)
Amendment 152 #
Draft legislative resolution
Paragraph 2
Paragraph 2
Amendment 153 #
Draft legislative resolution
Recital 4 a (new)
Recital 4 a (new)
— having regard to the Commission’s impact assessment of 4 March 20211b, _________________ 1b SWD(2021)42. (The Commission’s impact assessment covers the fundamental elements of the scope of the proposal for a directive.)
Amendment 154 #
Draft legislative resolution
Recital 4 b (new)
Recital 4 b (new)
Amendment 155 #
Draft legislative resolution
Recital 4 c (new)
Recital 4 c (new)
— having regard to the February 2020 study carried out by the European Parliament’s Policy Department for Economic, Scientific and Quality of Life Policies at the request of the Committee on Employment and Social Affairs3b, _________________ 3b PE 642.379.
Amendment 156 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
Having regard to Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees1c, _________________ 1c OJ L 294, 10.11.2001, pages 22–32.
Amendment 157 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
Having regard to Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE)2c, _________________ 2c OJ L 294, 10.11.2001, pages 1–21.
Amendment 160 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1a) According to Article 5(3) and (5) of the Treaty on European Union, action by the Union is governed by the principles of subsidiarity and proportionality.
Amendment 162 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) The European Parliamentary Research Service states that the specific objectives do not match the intervention logic3a presented in the Commission proposal. _________________ 3a PE 662.647, page 3.
Amendment 165 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) According to the European Parliamentary Research Service, there is no indication, qualitative or quantitative, of the contribution that would result from the measures proposed, nor is there an overall assessment of how substantive gender equality could be achieved4a. _________________ 4a PE 662.647, page 5.
Amendment 173 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4a) Article 23 of the Universal Declaration of Human Rights states that everyone has the right to free choice of employment, to just conditions of work and to just remuneration ensuring an existence worthy of human dignity.
Amendment 185 #
Proposal for a directive
Recital 6 a (new)
Recital 6 a (new)
(6a) Most Member States have introduced measures to ensure equal pay for men and women1a and thus, in accordance with the principles of subsidiarity and proportionality, specific measures should be taken only in those Member States that have not already done so. _________________ 1a PE 662.647, page 2.
Amendment 187 #
Proposal for a directive
Recital 6 b (new)
Recital 6 b (new)
(6b) To date, the Commission has recommended to just one Member State, Estonia, that it address its pay gap14a. _________________ 14a SWD(2021)42, page 25.
Amendment 188 #
Proposal for a directive
Recital 6 c (new)
Recital 6 c (new)
(6c) The Commission’s impact assessment reveals that half of the stakeholders consulted believe that men and women have equal pay for the same work or for work of equal value, while just over a third feel that this is not the case19a. _________________ 19a SWD(2021)42, page 107.
Amendment 189 #
Proposal for a directive
Recital 7
Recital 7
(7) The 2020 evaluation43 found that the implementation of the equal pay principle is, in some cases, hindered by a lack of transparency in pay systems, a lack of legal certainty on the concept of ‘work of equal value’, and by procedural obstacles faced by victims of discrimination. WSome workers lack the necessary information to make a successful equal pay claim and in particular information about the pay levels for categories of workers who perform the same work or work of equal value. The report found that increased transparency would allow revealing gender bias and discrimination between men and women in the pay structures of an undertaking or organisation. It would also enable workers, employers and social partners to take appropriate action to enforce the right to equal pay. _________________ 43 SWD(2020)50. See also the 2013 Report on the implementation of Directive 2006/54/EC to the European Parliament and the Council, COM (2013)861 final.
Amendment 193 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) According to the February 2020 study carried out by the European Parliament’s Policy Department for Economic, Scientific and Quality of Life Policies at the request of the Committee on Employment and Social Affairs, many of the arguments used both for and against binding pay transparency measures lack a strong evidence base8a. _________________ 8a PE 642.379, page 8.
Amendment 194 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7b) The Commission’s subsequent impact assessment, designed to support the proposal for a directive, reveals that pay transparency measures are supported by 58.8% of those consulted22a. _________________ 22a SWD(2021)42, page 172.
Amendment 195 #
Proposal for a directive
Recital 8
Recital 8
(8) Following a thorough evaluation of the existing framework on equal pay for equal work or work of equal value44 and a wide-ranging and inclusive consultation process45, the gender equality strategy 2020-202546 announced binding measures on pay transparency. Rather than focusing on ensuring equal pay, these measures can concentrate on the criteria that are laid down and assess objectives to ensure that they are non-discriminatory. _________________ 44 Evaluation of the relevant provision in Directive 2006/54/EC implementing the Treaty principle on ‘equal pay for equal work or work of equal value’, SWD(2020)50; Report on the implementation of the EU Action Plan 2017-2019 on tackling the gender pay gap, COM(2020)101. 45 https://ec.europa.eu/info/law/better- regulation/initiatives/ares-2020-33490_en. 46 Communication from the Commission, ‘A Union of Equality: Gender Equality Strategy 2020-2025’ of 5 March 2020, COM(2020)152 final.
Amendment 207 #
Proposal for a directive
Recital 9
Recital 9
(9) The gender pay gap ispay gap between men and women can be caused by various factors, part of which can be attributed to direct and indirect gender pay discrimination. A general lack of transparency about pay levels within organisations maintains a situation where gender-based pay discrimination and bias can go undetected or, where suspected, are difficult to prove. Binding measures are therefore needed to improve pay transparency, encourage organisations to review their pay structures to ensure equal pay for women and men doing the same work or work of equal value, and enable victims of discrimination to enforce their right to equal payMeasures are therefore needed to ensure objective pay setting criteria and to encourage the social partners to collaborate to achieve equal pay for women and men doing the same work or work of equal value. This needs to be complemented by provisions clarifying existing legal concepts (such as the concept of ‘pay’ and ‘work of equal value’) and measures improving enforcement mechanisms and access to justice.
Amendment 214 #
Proposal for a directive
Recital 10
Recital 10
(10) The application of the principle of equal pay between men and women should be enhanced by eliminating direct and indirect pay discrimination. This does not preclude employers to pay differently workers doing the same work or work of equal value on the basis of criteria that are objective, gender-neutral and bias-free criteria such as performance and competencefree of discriminatory bias between men and women such as performance, competence and commitment to the company’s goals.
Amendment 219 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) The European Parliamentary Research Service has stated that the proposal for a directive seems to be built around a pre-selected preferred option3a. _________________ 3a PE 662.647, page 5.
Amendment 220 #
Proposal for a directive
Recital 10 b (new)
Recital 10 b (new)
(10b) The European Company (Societas Europea in Latin, or SE) is a type of limited company created by EU law that allows a company to be run in different European countries using a single set of rules, and it should thus be the natural addressee of the measures in this directive.
Amendment 221 #
Proposal for a directive
Recital 10 c (new)
Recital 10 c (new)
(10c) Over and above the administrative burden, this directive must not apply to small and medium-sized enterprises (fewer than 250 workers) as the average salary in those companies may not reflect the reality of highly volatile and changing environments that require a tailor-made approach for each worker. In such cases, the average could be skewed because some of the workers have extremely disparate salaries.
Amendment 222 #
Proposal for a directive
Recital 10 d (new)
Recital 10 d (new)
(10d) The measures proposed in this directive must not backfire and result in workers losing their jobs because of the need to reduce the average pay level in order to comply with the directive, and this is particularly important for small and medium-sized enterprises (fewer than 250 workers).
Amendment 226 #
Proposal for a directive
Recital 11
Recital 11
(11) This Directive should apply to all workers, including part-time workers, fixed-term contract workers or persons with a contract of employment or employment relationship with a temporary agency, who have an employment contract or employment relationship as defined by the law, collective agreements and/or practice in force in each Member State, taking into account the case-law of its courts and of the Court of Justice of the European Union (‘the Court’). In its case- law, the Courtnational courts and the Court of Justice established criteria for determining the status of a worker47. Provided that they fulfil those criteria, domestic workers, on- demand workers, intermittent workers, voucher based-workers, platform workers, trainees and apprentices should fall within the scope of this Directive. The determination of the existence of an employment relationship should be guided by the facts relating to the actual performance of the work and not by the parties’ description of the relationship. _________________ 47 Case C-66/85, Deborah Lawrie-Blum v Land Baden-Württemberg, ECLI:EU:C:1986:284; Case C-428/09, Union Syndicale Solidaires Isère v Premier ministre and Others, ECLI:EU:C:2010:612; Case C-229/14, Ender Balkaya v Kiesel Abbruch- und Recycling Technik GmbH, ECLI:EU:C:2015:455; Case C-413/13, FNV Kunsten Informatie en Media v Staat der Nederlanden, ECLI:EU:C:2014:2411; Case C-216/15, Betriebsrat der Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH, ECLI:EU:C:2016:883; Case C- 658/18, UX v Governo della Repubblica italiana, ECLI:EU:C:2020:572.
Amendment 228 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to remove obstacles for victims of gender pay discrimination between men and women to enforce their right to equal pay and guide employers, in specific situations, in ensuring respect of this right, the core concepts related to equal pay, such as ‘pay’ and ‘work of equal value’, should be clarified in line with the case-law of the Court. This should facilitate the application of these concepts, especially. In any event, this directive must not create an excessive administrative burden for small and medium-sized enterprises.
Amendment 234 #
Proposal for a directive
Recital 13
Recital 13
(13) The principle of equal pay for equal work or work of equal value for women and men should be respected with regard to wage or salary and any other consideration, whether in cash or in kind, which the workers receive directly or indirectly, in respect of their employment from their employer. In line with the case-law of the Court48, the concept of ‘pay’ should comprise not only salary, but also additional benefits such as bonuses, overtime compensation, travel facilities (including cars provided by the employer and travel cards), housing allowances, compensation for attending training, and payments in case of dismissal, statutory sick pay, statutory required compensation and occupational pensions. It should include all elements of remuneration due by. It should include all elements of remuneration that are the responsibility of the employer under the applicable law or collective agreement. _________________ 48 For example, Case C-58/81, Commission of the European Communities v Grand Duchy of Luxembourg, ECLI:EU:C:1982:215; Case C-171/88 Rinner-Kulhn v FWW Spezial- Gebaudereinigung GmbH, ECLI:EU:C:1989:328; Case C-147/02 Alabaster v Woolwhich plc and Secretary of State for Social Security, ECLI:EU:C:2004:192; Case C-342/93 - Gillespie and Others ECLI:EU:C:1996:46; Case C-278/93 Freers and Speckmann v Deutsche Bundepost, ECLI:EU:C:1996:83; Case C-12/81, Eileen Garland v British Rail Engineering Limited, ECLI:EU:C:1982:44; Case C-360/90, Arbeiterwohlfahrt der Stadt Berlin e.V. v Monika Bötel, ECLI:EU:C:1992:246; Case C-33/89, Maria Kowalska v Freie und Hansestadt Hamburg, ECLI:EU:C:1990:925.
Amendment 237 #
Proposal for a directive
Recital 14
Recital 14
(14) Article 10 of the Treaty on the Functioning of the European Union provides that, in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 4 of Directive 2006/54/EC provides that there shall be no direct or indirect discrimination on grounds of sex, notably in relation to pay. Gender- basedIn fact, pay discrimination where a victim’s sex plays a crucial role can take many different forms in practice. It may involve an intersection of various axes of discrimination or inequality where the worker is a member of one or several groups protected against discrimination on the basis of sex, on the one hand, and racial or ethnic origin, religion or belief, disability, age or sexual orientation (as protected under Directive 2000/43/EC or Directive 2000/78/EC), on the other hand. Migrant women are among groups who face such multiple forms of discriminationbe the result of payment of a salary lower than that of a person of the opposite sex who carries out equal work or work of equal value, or of a provision, criterion or practice that discriminates against a person on the basis of sex that means that the victim receives a salary lower than that of a person of the opposite sex for equal work or work of equal value. This directive shouldmust therefore clarify that, in the context of gender-based pay discrimination, such a combination should be taken into account, thus removing any doubt that may exist in this regard under the existing legal frameworkbe consistent with Directive 2006/54/EC and focus on eliminating criteria that cause indirect discrimination, in this case on grounds of sex. This should ensure that the courts or other competent authorities take due account of any situation of disadvantage arising from intersectionaldirect pay discrimination, in particular for substantive and procedural purposes, including to recognise the existence of discrimination, to decide on the appropriate comparator, to assess the proportionality, on grounds of sex to recognise the existence of discrimination and to determine, where relevant, the level of compensation awarded or penalties imposed.
Amendment 250 #
Proposal for a directive
Recital 15
Recital 15
(15) In order to respect the right to equal pay between men and women, employers covered by this directive must have pay setting mechanisms or pay structures in place ensuring that there are no pay differences between male and female workers doing the same work or work of equal value that are not justified by objective and gendersex-neutral factors. Such pay structures should allow for the comparison of the value of different jobs within the same organisational structure. In line with the case-law of the Court, the value of work should be assessed and compared based on objective criteria, such as educational, professional and training requirements, skills, effort and responsibility, work undertaken and the nature of the tasks involved49. These pay mechanisms must not hinder individual wage adjustment based on opportunity. _________________ 49 For example, Case C-400/93, Royal Copenhagen, ECLI:EU:C:1995:155; Case C-309/97, Angestelltenbetriebsrat der Wiener Gebietskrankenkasse, ECLI:EU:C:1999:241; Case C-381/99, Brunnhofer, ECLI:EU:C:2001:358; Case C-427/11, Margaret Kenny and Others v Minister for Justice, Equality and Law Reform and Others [2013] ECLI:EU:C:2013:122, paragraph 28.
Amendment 259 #
Proposal for a directive
Recital 16
Recital 16
(16) The identification of a valid comparator is an important parameter in determining whether work may be considered of equal value. It enables the worker to show that they were treated less favourably than the comparator of a different sex performing equal work or work of equal value. In situations where no real-life comparator exists, the use of a hypothetical comparator should be allowed, allowing a worker to show that they have not been treated in the same way as a hypothetical comparator of another sex would have been treated. This would lift an important obstacle for potential victims of gender pay discrimination, especially in highly gender-segregated employment markets where a requirement of finding a comparator of the opposite sex makes it almost impossible to bring an equal pay claim. In addition, workers should not be prevented from using other facts from which an alleged discrimination can be presumed, such as statistics or other available informationit is especially necessary to focus not on the pay level but on the pay setting criteria so as to be able to ensure that they are objective rather than discriminatory. This would allow gender-based pay inequalities to be more effectively addressed in gender-segregated sectors and professionscompanies that have no real pay comparator.
Amendment 265 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) The Commission’s impact assessment states that, in accordance with EU law, the concept of ‘equal value’ is determined at company level not sectoral level. Consequently, sectoral or horizontal comparisons between companies are outside the scope of the impact assessment for this directive15a. _________________ 15a SWD(2021)42, page 62.
Amendment 267 #
Proposal for a directive
Recital 17
Recital 17
(17) The Court has clarified50 that in order to compare whether workers are in a comparable situation, the comparison is not necessarily limited to situations in which men and women work for the same employer. W, given that workers may be in a comparable situation even when they do not work for the same employer whenever the pay conditions can be attributed to a single source setting up those conditions. This may be the case when pay conditions are regulated by statutory provisions or collective labour agreements relating to pay applicable to several companies, or when such conditions are laid down centrally for more than one organisation or business within a holding company or conglomerate. Furthermore, the Court clarified that the comparison is not limited to workers employed at the same time as the claimant51. _________________ 50 Case C-320/00, Lawrence, ECLI:EU:C:2002:498. 51 Case 129/79, Macarthys, ECLI:EU:C:1980:103.
Amendment 269 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) Over and above the conditions referred to by the Court of Justice according to the previous paragraph, under EU law the concept of ‘work of equal value’ only applies to different occupations defined as of equal value in the same organisation, as confirmed in the Commission’s impact assessment12a. _________________ 12a SWD(2021)42, page 6.
Amendment 272 #
Proposal for a directive
Recital 18
Recital 18
(18) Member States should develop specific tools and methodologies to support and guide the assessment of what constitutes work of equal value. This should facilitate the application of this concept, especially for small and medium- sized enterprisesallowing enterprises to confirm their pay criteria in order to avoid any pay discrimination between men and women for work of equal value.
Amendment 281 #
Proposal for a directive
Recital 19
Recital 19
(19) Job classification and evaluation systems may, if not used in a gender- neutral manner, in particular when they assume traditional gender stereotypes, result in gender-based pay discriminationn objective and impartial manner, result in pay discrimination between men and women, thereby infringing Article 157 of the TFEU. In such case, they contribute to and perpetuate the pay gap by evaluating male and female dominated jobs differently in situations where the worth of the work performed is of equal value. Where gender-neutral job evaluation and classification systems that are impartial and objective towards men and women are used, however, they are effective in establishing a transparent pay system and are instrumental to ensure that direct or indirect discrimination on grounds of sex is excluded. They detect indirect pay discrimination related to the undervaluation of jobs typically done by women. They do so by measuring and comparing jobs whose content is different but of equal value and so support the principle of work of equal value.
Amendment 285 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
Amendment 293 #
(20) The lack of information on the envisaged pay range of a job position can creates an information asymmetry which limits the bargaining power of applicants. Ensuring transparency should enable prospective workers to make an informed decision about the expected salary without limiting in any way the employer’s or worker’s bargaining power to negotiate a salary even outside the indicated range. It would also ensure an explicit and non- gender biased basis for pay setting and would disrupt the undervaluation of pay compared to skills and experience. This transparency measur, where appropriate, an explicit basis for pay setting that does not discriminate between men and women. Nevertheless, the general requirement to provide information on the salary range wcould also address intersectional discrimination where non- transparent pay settings allow for discriminatory practices on several discrimination groundsbackfire and discourage at the outset applications from both men and women who could be ideal for the job. The information to be provided to applicants prior to employment, if not published in a job vacancy notice, could be provided to the applicant prior to or at the start of the job interview by the employer or in a different manner, for instance by the social partners.
Amendment 296 #
Proposal for a directive
Recital 20 a (new)
Recital 20 a (new)
(20a) According to the Commission’s impact assessment, in order to prevent prospective candidates from being ‘poached’ in very competitive job markets, a company could provide information on the salary being offered at the start of the job interview, rather than including it in the vacancy notice6a. _________________ 6a SWD(2021)42, page 40.
Amendment 297 #
Proposal for a directive
Recital 20 b (new)
Recital 20 b (new)
(20b) According to the Explanatory Memorandum of the Commission proposal, the information on the pay scale does not limit the ability of companies, workers and social partners to negotiate a salary outside the pay range initially indicated23a. _________________ 23a COM(2021)0093, page 11.
Amendment 298 #
Proposal for a directive
Recital 20 c (new)
Recital 20 c (new)
(20c) According to the Commission’s impact assessment, only 38% of the social partners consulted support the idea of prohibiting all employers from asking applicants about their previous salary10a. _________________ 10a SWD(2021)42, page 40.
Amendment 302 #
Proposal for a directive
Recital 21
Recital 21
(21) In order to disrupt the perpetuation of a pay gap between female and male workers affecting individual workers over time, employers should not be allowed to enquire about the prior pay history of the applicant for a job, unless the applicant indicates freely that he or she has no reservations about providing that information.
Amendment 307 #
Proposal for a directive
Recital 22
Recital 22
(22) Pay transparency measures should protect workers’ right to equal pay while limiting as much as possible costs and burden for employers, paying specific attention to micro and smallguaranteeing freedom of enterprises. WThere appropriatfore, measures should be tailored to the size of employers taking into account employers’ headcount.
Amendment 336 #
Proposal for a directive
Recital 25
Recital 25
(25) Employers with at least 250 workers should regularly report on pay, in a suitable and transparent manner, such as including the information in their management report. Companies subject to the requirements of Directive 2013/34/EU of the European Parliament and of the Council52 may also choose to report on pay alongside other worker-related matters in their management report. _________________ Application of these requirements to small and medium- sized enterprises (fewer than 250 workers) would be disproportionate and counter- productive, according to the Commission’s impact assessment7a. _________________ 7a SWD(2021)42, pages 39 and 59. 52 Directive 2013/34/EU, as amended by Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 as regards disclosure of non- financial and diversity information by certain large undertakings and groups (OJ L 330, 15.11.2014, p. 1).
Amendment 340 #
Proposal for a directive
Recital 26
Recital 26
(26) Pay reporting should allow employers to evaluate and monitor their pay structures and policies, allowing them to proactively comply with the principle of equal pay. At the same time, the gender- disaggregated data should assist competent public authorities, and workers’ representatives and other stakeholders to monitor the gender pay gapto monitor the pay gap between men and women across sectors (horizontal segregation) and functions (vertical segregation). Employers may wish to accompany the published data by an explanation of any gender pay differences or gaps between men and women. In cases where differences in average pay for the same work or work of equal value between female and male workers cannot be justified by objective and gender-neutral factorsfactors that are impartial with regard to men and women, the employer should take measures to remove the inequalities.
Amendment 343 #
Proposal for a directive
Recital 27
Recital 27
(27) To reduce the burden on employers, those Member States could decide to gather and interlinkthat gather the necessary data through their national administrations allowing for a computation ofwill compute the pay gap between female and male workers per, so employers will not have to carry out this computation. Such data gathering may require interlinking data from several public administrations (such as tax inspectorates and social security offices) and would be possible if administrative data match, including employers’ (company/organisational level) toand workers’ (individual level) data, and including benefits in cash and in-kind, are available. Member States could decide to gather this information not only for those employers covered by the pay reporting obligation under this Directive, but also with regard to small and medium-sized enterprises. The publication of the required information by Member States should replace the obligation of pay reporting on those employers covered by the administrative data provided that the result intended by the reporting obligation is achieved.
Amendment 360 #
Proposal for a directive
Recital 29
Recital 29
(29) Joint pay assessments should trigger the review and revision of pay structures in organisations with at least 250 workers that show pay inequalities. The joint pay assessment should be carried out by employers in cooperation with workers’ representatives; if workers’ representatives are absent, they should be designated for this purpose. Joint pay assessments should lead to the elimination of gender discrimination in pay between men and women.
Amendment 371 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) According to the Commission’s impact assessment, just 35% of the Member States are in favour of prohibiting confidentiality clauses on workers’ pay21a. _________________ 21a SWD(2021)42, page 109.
Amendment 372 #
Proposal for a directive
Recital 30
Recital 30
(30) Any processing or publication of information under this Directive should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council53. Specific safeguards should be added to prevent the direct or indirect disclosure of information of an identifiable co-worker. On the other hand, workers should not be prevented from voluntarilyThe ability of workers to disclosinge their pay for the purpose of enforcing the principle of equal pay between men and women for equal work or work to which equal value is attributedght of men and women to equal pay should be assessed in the light of the right to personal data protection given that both are fundamental rights of the European Union. _________________ 53 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119, 4.5.2016, p. 1.
Amendment 378 #
Proposal for a directive
Recital 31
Recital 31
(31) It is important that social partners discuss and give particular attention to matters of equal pay in collective bargaining. The different features of national social dialogue and collective bargaining systems across the Union and the autonomy and contractual freedom of social partners as well as their capacity as representatives of workers and employers should be respected. Therefore, Member States, in accordance with their national system and practices, should take appropriate measures, such as programmes supporting social partners, practical guidance as well as an active participation of the government in a social dialogue at national level. Such measures should encourage social partners to pay due attention to equal pay matters, including discussions at the appropriate level of collective bargaining and the development of gender-neutral job evaluation and classification systems that are impartial towards men and women.
Amendment 383 #
Proposal for a directive
Recital 32 a (new)
Recital 32 a (new)
(32a) According to the Commission’s impact assessment, it is not advisable to extend the right of action on behalf of workers to associations, organisations or other legal entities given the wide variety of such organisations and the interests they represent. Therefore, the impact assessment for this directive did not include the possible effects attributable to those entities16a. _________________ 16a SWD(2021)42, page 64.
Amendment 387 #
Proposal for a directive
Recital 33
Recital 33
(33) Involving equality bodies, besides other stakeholdocial partners, is instrumental in effectively applying the principle of equal pay. The powers and mandates of the national equality bodies should therefore be adequate to fully cover gender pay discrimination between men and women, including any pay transparency or any other rights and obligations laid down in this Directive. In order to overcome the procedural and cost- related obstacles that workers who believe to be discriminated against face when they seek to enforce their right to equal pay, equality bodies, as well as associations, organisations, bodies and workers’ representatives or other legal entities with an interest in ensuring equality between men and women, should be able to represent individuals. They should be able to decide to assisshould be able to represent workers on their behalf or in their support, which would allow workers who have suffered discrimination to effectively claim their rights and the principle of equal pay to be enforced.
Amendment 391 #
Proposal for a directive
Recital 34
Recital 34
(34) Equality bodies and workers’ representatives should also be able to represent one or several workers who believe to be discriminated against based on sex in violation of the principle of equal pay for the same work or work of equal value. Bringing claims on behalf of or supporting several workers is never a desirable practice, although it can be a way to facilitate proceedings that would not have been brought otherwise because of procedural and financial barriers or a fear of victimisation and also when workers are facing discrimination on multiple grounds which can be difficult to disentangle. Collective claims have the potential to uncover systemic discrimination and create visibility of equal pay and gender equalityfor men and women in society as a whole. The possibility of collective redress would motivate pro- active compliance with pay transparency measures, creating peer pressure and increasing employers’ awareness and willingness to act preventively.
Amendment 395 #
Proposal for a directive
Recital 35
Recital 35
(35) Member States should ensure respect for the competences of the labour inspectorate and the allocation of sufficient resources to equality bodies for the effective and adequate performance of their tasks related to pay discrimination based on sex. Where the tasks are allocated to more than one body, Member States should ensure that they are adequately coordinated.
Amendment 401 #
Proposal for a directive
Recital 36
Recital 36
(36) Compensation should cover in full the loss and damage sustained as a result of gender pay discrimination between men and women54. It should include full recovery of back pay and related bonuses or payments in kind, as well as compensation for lost opportunities and moral prejudice. No prior fixed upper limit for such compensation should be allowed. _________________ 54 Case C-407/14, María Auxiliadora Arjona Camacho v Securitas Seguridad España SA, ECLI:EU:C:2015:831, para. 45.
Amendment 404 #
Proposal for a directive
Recital 37
Recital 37
(37) In addition to compensation, other remedies should be provided. Courts should, for instance, be able to require an employer to take structural or organisational measures to comply with its obligations regarding equal pay. Such measures may include, for instance, an obligation to review the pay setting mechanism based on a gender-neutraln evaluation and classification that is impartial towards men and women; to set up an action plan to eliminate the discrepancies discovered and to reduce any unjustified gaps in pay; to provide information and raise workers’ awareness about their right to equal pay; to establish a mandatory training for human resources staff on equal pay and gender-neutral job evaluation and classification that is impartial towards men and women.
Amendment 408 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39a) As regards the rules for accessing confidential evidence in the context of legal proceedings, the Member States will take into account the special nature of communications between lawyers and clients, which are in any event protected by professional secrecy.
Amendment 409 #
Proposal for a directive
Recital 40
Recital 40
(40) In accordance with the case-law of the Court, national rules on time limits for the enforcement of rights under this Directive should be such that they cannot be regarded as capable of rendering virtually impossible or excessively difficult the exercise of those rights. Limitation periods create specific obstacles for victims of gender pay discrimination. For that purpose, common minimum standards should be established. Those standards should determine when the limitation period begins to run, the duration thereof and the circumstances under which it is interrupted or suspended and provide that the limitation period for bringing claims is at least three yearfficient for the exercise of those rights.
Amendment 415 #
Proposal for a directive
Recital 41
Recital 41
Amendment 426 #
Proposal for a directive
Recital 42
Recital 42
(42) Member States should provide for effective, proportionate and dissuasive penalties in the event of infringements of national provisions adopted pursuant to this Directive or national provisions that are already in force on the date of entry into force of this Directive and that relate to the right to equal pay between men and women for the same work or work of equal value. Such penalties should include fines, which should be set at a minimum level having due regard to the gravity and duration of the infringement, to any possible intent to discriminate or serious negligence, and to any other aggravating or mitigating factors that may apply in the circumstances of the case, for instance, where pay discrimination based on sex intersects with other grounds of discrimination. Member States should consider allocating amounts recovered as fines to the equality bodies for the purpose of effectively carrying out their functions in regard to the enforcement of the right to equal pay, including to bring pay discrimination claims or assist and support victims in bringing such claims.
Amendment 434 #
Proposal for a directive
Recital 44
Recital 44
(44) Obligations on employers stemming from this Directive are part of the applicable obligations in the fields of environmental, social and labour law whose compliance Member States have to ensure under Directive 2014/23/EU of the European Parliament and of the Council56, Directive 2014/24/EU of the European Parliament and of the Council57, Directive 2014/25/EU of the European Parliament and of the Council58 in regard to participation in public procurement procedures. In order to comply with these obligations as far as the right to equal pay is concerned, Member States should in particular ensure that economic operators, in the performance of a public contract or concession, have pay setting mechanisms that do not lead to a pay gap between female and male workers that cannot be justified by gender-neutral factorselements that do not discriminate between men and women in any category of workers carrying out equal work or work of equal value. In addition, Member States should consider for contracting authorities to introduce, as appropriate, penalties and termination conditions ensuring compliance with the principle of equal pay in the performance of public contracts and concessions. They may also take into account non-compliance with the principle of equal pay by the bidder or one of his subcontractors when considering the application of exclusion grounds or a decision not to award a contract to the tenderer submitting the most economically advantageous tender. _________________ 56 Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts, OJ L 94, 28.3.2014, p. 1. 57 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, OJ L 94, 28.3.2014, p. 65. 58 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, OJ L 94, 28.3.2014, p. 243.
Amendment 435 #
Proposal for a directive
Recital 46 a (new)
Recital 46 a (new)
Amendment 436 #
Proposal for a directive
Recital 47
Recital 47
(47) This Directive lays down minimum requirements, thus respecting the Member States’ prerogative to introduce and maintain more favourable provisions. Rights acquired under the existing legal framework should continue to apply, unless more favourable provisions are introduced by this Directive. The implementation of this Directive cannot be used to reduce existing rights set out in existing Union or national law in this field, nor can it constitute valid grounds for reducing the rights of workers in regard to equal pay between men and women for the same work or work of equal value.
Amendment 438 #
Proposal for a directive
Recital 48
Recital 48
(48) In order to ensure proper monitoring of the implementation of the right to equal pay between men and women for the same work or work of equal value, Member States should set up or designate a dedicated monitoring body. This body, which may be part of an existing body pursuing similar objectives, should have specific tasks in relation to the implementation of the pay transparency measures foreseen in this Directive and gather certain data to monitor pay inequalities and the impact of the pay transparency measuresall entrust to the equality body provided for in Directive 2006/54/EC the tasks set out in this Directive.
Amendment 444 #
Proposal for a directive
Recital 49
Recital 49
(49) Compiling wage statistics broken down by genderetween men and women and providing the Commission (Eurostat) with accurate and complete statistics is essential for analysing and monitoring changes in the gender pay gap between men and women at Union level. Council Regulation (EC) No 530/199959 requires Member States to compile four-yearly structural earnings statistics at micro level that provide harmonized data for the calculation of the gender pay gap between men and women. Annual high-quality statistics could increase transparency and enhance monitoring and awareness of genderany pay inequality between men and women. The availability and comparability of such data is instrumental for assessing developments both at national level and throughout the Union. _________________ 59 Council Regulation (EC) No 530/1999 of 9 March 1999 concerning structural statistics on earnings and on labour costs (OJ L 63, 12.3.1999, p. 6).
Amendment 446 #
Proposal for a directive
Recital 49 a (new)
Recital 49 a (new)
49a. According to the Commission’s Impact Assessment, the unexplained pay gap is no higher than 5% in Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Spain, Finland, Italy, Lithuania, Luxembourg, Malta, Netherlands, Poland and Slovakia, while the percentage is over 5% in Estonia, France, Hungary, Latvia, Portugal, Romania, Sweden and Slovenia9a. A percentage of less than 5% is considered statistically irrelevant. _________________ 9a SWD(2021) 42, page 144.
Amendment 448 #
Proposal for a directive
Recital 50
Recital 50
(50) This Directive aims at a better and more effective implementation of the principle of equal pay for equal work or work to which equal value is attributed between men and women through the establishment of common minimum requirements which should apply to all undertakings and organisations across the European Unionreducing the unexplained pay gap in Estonia, France, Hungary, Latvia, Portugal, Romania, Sweden and Slovenia to 5% and maintaining the principle of equal pay for men and women in the other Member States. Since thisat objective canhas not be sufficientlyen achieved by theose eight Member States and should therefore be achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive, which limits itself to setting minimum standards, does not go beyond what is necessary in order to achieve that objective, the Union is adopting this Directive, which is in any event in accordance with the principle of attribution applied to Article 157 of the TFEU.
Amendment 449 #
Proposal for a directive
Recital 50 a (new)
Recital 50 a (new)
50a. In Member States in which the role of the social partners is crucial in setting remuneration levels, in particular, there is evidence that pay transparency measures can lead to a disgruntlement effect, as evidenced in the Commission’s Impact Assessment11a. _________________ 11a SWD(2021) 42, page 45.
Amendment 450 #
Proposal for a directive
Recital 51
Recital 51
(51) The role of social partners is of key importance in designing the way pay transparency measures are implemented in Member States, especially in those with high collective bargaining coverage. Member States should therefore have the possibility to entrust the social partners with the implementation of all or part of this Directive, provided that they take all the necessary steps to ensure that the results sought by this Directive are guaranteed at all times. This Directive shall be interpreted so as to strengthen the role of the social partners in the different Member States.
Amendment 451 #
Proposal for a directive
Recital 51 a (new)
Recital 51 a (new)
51a. In general, the different national legal systems prevent salaries from being lowered, and therefore the action measures to adjust the pay gap may lead to the risk of a forced increase in salaries. This risk is particularly serious in small and medium-sized enterprises (those with fewer than 250 workers).
Amendment 460 #
Proposal for a directive
Recital 52
Recital 52
(52) In implementing this Directive Member States should avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of micro, small and medium-sized enterprises. Member States are therefore invited to assess the impact of their transposition act, onexclude small and medium-sized enterprises from their transposition act in order to ensure that they are not disproportionately affected, giving specific attention toaffected, particularly micro-enterprises, and to alleviate their administrative burden, and to publish the results of such assessmentsin accordance with the recommendations of the European Parliamentary Research Service5a. _________________ 5a PE 662.647, page 6.
Amendment 462 #
Proposal for a directive
Recital 53 a (new)
Recital 53 a (new)
53a. The European Parliamentary Research Service has pointed out that the Commission’s impact assessment did not take the proportionality principle into account, and did not compare the options against that principle2a. _________________ 2a PE 662.647, page 2.
Amendment 466 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive applies to employers in the public and private sectorsEuropean companies (SEs). It shall also apply to all the European Union’s institutions and bodies. Its scope shall extend to candidates in selection processes organised by the said SEs, institutions and bodies of the European Union, in accordance with the provisions of Article 5.
Amendment 478 #
Proposal for a directive
Article 2 – paragraph 2
Article 2 – paragraph 2
2. This Directive applies to all workers who have an employment contract or employment relationship as defined by law, collective agreements and/or practice in force in each Member State with consideration to the case-law of their respective courts and that of the Court of Justice.
Amendment 485 #
Proposal for a directive
Article 3 – paragraph 1 – point a
Article 3 – paragraph 1 – point a
(a) ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind which the worker receives directly or indirectly (‘complementary or variable components’, including non-monetary benefits such as additional days of leave or reduction in the paid working day), in respect of his/her employment from his/her employer;
Amendment 491 #
Proposal for a directive
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
Amendment 528 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. Pay discrimination under this Directive includesderives from discrimination based on a combination of sex and any other ground or grounds of discrimination protected under Directive 2000/43/EC or Directive 2000/78/ECsex, contrary to Article 157 of the TFEU.
Amendment 552 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Member States shall take the necessary measures ensuring that tools or methodologies are established to assess and compare the value of work in line with the criteria set out in this Article. These tools or methodologies may include gender- neutralused for job evaluation and classification systemshall avoid any salary discrimination between men and women.
Amendment 563 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The tools or methodologies shall allow assessing, in regard to the value of work, whether workers are in a comparable situation, on the basis of objective criteria which shall include educational, professional, organisational and training requirements, skills, experience, commitment to the undertaking’s aims, effort and responsibility, work undertaken and the nature of the tasks involved, as well as general and specific criteria deriving from collective bargaining. This list of criteria is non- exhaustive. They shall not contain or be based on criteria which are based, whether directly or indirectly, on workers’ sex.
Amendment 600 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Applicants for employment shall have the right to receive from the prospective employer information about the initial pay level or its range, based on objective, gender-neutral criteria criteria that do not discriminate between men and women, to be attributed for the position concerned. Such information shall be indicated in a published job vacancy notice or otherwise provided to the applicant prior to the job interview or at the start of the interview without the applicant having to request it.
Amendment 603 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. The information on the pay range initially provided under paragraph 1 shall not limit the capacity of business owners, workers and social partners to negotiate a salary outside the pay range on which information was initially provided.
Amendment 608 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. An employer shall not, orally or in writing, personally or through a representative, ask applicants about their pay history during their previous employment relationships, unless the applicant freely states that he or she has no difficulty with providing that information.
Amendment 613 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
The employer shall make easily accessible to its workers a description of the criteria used to determine pay levels and career progression for workers. These criteria shall be gender-neutral, if it has such a description. If the description is provided through collective bargaining the obligation laid down in this Article shall not be applicable. Similarly, the obligation shall not be applicable in cases where pay levels and career progression are set on the basis of achieving mutually agreed targets. The criteria referred to in the paragraph above shall be objective and shall not discriminate between men and women.
Amendment 634 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Workers shall have the right to receive information on their individual pay level and the average pay levels, broken down by sex, criteria used to set pay levels and evaluations of targets for categories of workers doing the same work as them or work of equal value to theirs, in accordance with paragraphs 3 and 4. These criteria shall comply with the principle of equal pay for men and women for the same work or work of equal value.
Amendment 642 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. With the aim of safeguarding the right to personal data protection, the information referred to in paragraph 1 may only be requested in those cases where there is no risk of disclosure of the personal data of third parties and when the worker provides prima facie evidence of salary discrimination on the grounds of sex. In the event of doubt, the business owner and the worker, or where relevant their trade union representative, shall consult the national personal data protection authority.
Amendment 660 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Workers shall have the possibility to request the information referred to in paragraph 1 through their representatives or an equality body.
Amendment 667 #
Proposal for a directive
Article 7 – paragraph 5
Article 7 – paragraph 5
5. Workers shall not be prevented from disclosing their pay for the purpose of enforcingverifying, in their specific case, the application of the criteria laid down in paragraph 1 and, as a result, compliance with the principle of equal pay between men and women for equal work or work of equal value.
Amendment 671 #
Proposal for a directive
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Employers may require that any worker having obtained information pursuant to this Article shall not use that information for any other purpose than to defend their right to equal pay for the same work or work of equal value with regard to the opposite sex and not disseminate the information otherwise.
Amendment 679 #
Proposal for a directive
Article 8 – paragraph 1 – introductory part
Article 8 – paragraph 1 – introductory part
1. Employers with at leastfalling within the scope of this Directive shall, subject to the condition that this Article shall under no circumstances impose an obligation on employers with fewer than 250 workers shall, provide the following information concerning their organisation, in accordance with paragraphs 2, 3, and 5:
Amendment 692 #
Proposal for a directive
Article 8 – paragraph 1 – point a
Article 8 – paragraph 1 – point a
(a) the pay gap between all female and male workers, where it is greater than 5%;
Amendment 695 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
Amendment 704 #
Proposal for a directive
Article 8 – paragraph 1 – point c
Article 8 – paragraph 1 – point c
(c) the median pay gap between all female and male workers, where it is greater than 5%;
Amendment 707 #
Proposal for a directive
Article 8 – paragraph 1 – point d
Article 8 – paragraph 1 – point d
Amendment 718 #
Proposal for a directive
Article 8 – paragraph 1 – point g
Article 8 – paragraph 1 – point g
(g) the pay gap between female and male workers by categories of workers broken down by ordinary basic salary and complementary or variable components, where it is greater than 5%.
Amendment 751 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The employer shall publish the information referred to in paragraph 1, points (a) to (f) on an annual basis in a user-friendly way on its website or shall otherwise make it publicly available. The information from the previous four years, if available, shall also be accessible upon request. In addition, the employer shall share this information with the monitoring body referred to in paragraph 6.
Amendment 753 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Member States may decide to compile the information set out in paragraph 1, points (a) to (f) themselves, on the basis ofIn cases where the Member States have the information, in full or in part, set out in paragraph 1, from administrative data such as data provided by employers to the tax or social security authorities. This inform, publication shall be made public in accordance with paragraph 6the responsibility of the corresponding official body of the Member State in accordance with paragraph 6 and, as a result, employers shall be exempt from that obligation to the same extent, in full or in part.
Amendment 767 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. TExcept in the circumstances referred to in paragraph 4, the employer shall provide the information referred to in paragraph 1, point (g) to all workers and their representatives, as well as to the monitoring body referred to in paragraph 6. It shall provide it to the labour inspectorate and the equality body upon theirupon its request. The information from the previous four years, if available, shall also be provided upon request, in accordance with this Article.
Amendment 777 #
Proposal for a directive
Article 8 – paragraph 6
Article 8 – paragraph 6
6. Member States shall entrust the monitoring body designated pursuant to Article 26 to collect the data received from employers pursuant to paragraph 1, points (a) to (f) and to ensure that this data is public and allows a comparison between employers, sectors and regions of the Member State concerned in a user-friendly way.
Amendment 780 #
Proposal for a directive
Article 8 – paragraph 7
Article 8 – paragraph 7
7. Workers and their representatives, labour inspectorates and equality bodies shall have the right to ask the employer for additional clarifications and details regarding any of the data provided, including explanations concerning any gender pay differences between men and women, unless those data are already in the possession of Member States’ bodies, in which case the request shall be directed to them. The employer shall respond to such request within a reasonable time by providing a substantiated reply. Where gender pay differences between men and women are not justified by objective and gender-neutral factors, the employer shall remedy the situation in close cooperation with the workers’ representatives, the labour inspectorate and/or the equality body.
Amendment 790 #
Proposal for a directive
Article 8 – paragraph 7 a (new)
Article 8 – paragraph 7 a (new)
7a. Where the publication of the information contained in this Article could give rise to an infringement of personal data protection legislation, it shall only be notified to workers’ representatives and official public bodies. In the event of doubt, the business owner and the worker, or where relevant their trade union representative, shall consult the national personal data protection authority in this connection.
Amendment 819 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(b) the employer has not justified such difference in average pay level by objective and gender-neutral factorsfactors that do not discriminate between men and women.
Amendment 862 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. To the extent that any information provided pursuant to measures taken under Articles 7, 8, and 9this Directive involves the processing of personal data, it shall be provided in accordance with Regulation (EU) 2016/679.
Amendment 865 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Any personal data collected by employers pursuant to Articles 7, 8 or 9,processed pursuant to this Directive shall not be used for any other purpose than to implement the principle of equal pay for equal work or work of equal value.
Amendment 866 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States may decide that, where the disclosure of information pursuant to Articles 7, 8 and 9this Directive would lead to the disclosure, either directly or indirectly, of the pay of an identifiable co- worker, only the workers’ representatives or the equality body shall have access to that information. The representatives or equality body shall advise workers regarding a possible claim under this Directive without disclosing actual pay levels of individual workers doing the same work or work of equal value. The monitoring body referred to in Article 26 shall have access to the information without restrictionany personal data protection restrictions other than those deriving from Regulation (EU) 2016/679 and other legislation in force.
Amendment 874 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Without prejudice to the autonomy of social partners and in accordance with national law and practice, Member States shall ensure that the rights and obligations under this Directive are discussed with social partners. Specifically, when transposing this Directive, Member States shall favour dialogue with social partners regarding the remedies and enforcement laid down in the following chapter.
Amendment 883 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
Member States shall ensure that, after possible recourse to dialogue through social partners and conciliation, judicial procedures for the enforcement of rights and obligations related to the principle of equal pay between men and women for equal work or work of equal value are available to all workers who consider themselves wronged by a failure to apply the principle of equal pay for equal work or work of equal value. Such procedures shall be easily accessible to workers and to those who act on their behalf, even after the labour relationship in which the discrimination is alleged to have occurred has ended.
Amendment 886 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure that associations, organisations, equality bodies and workers’ representatives or other legal entities which have, in accordance with the criteria laid down by national law, a legitimate interest in ensuring equality between men and women, may engage in any judicial or administrative procedure to enforce any of the rights or obligations related to the principle of equal pay between men and women for equal work or work of equal value. They may act on behalf or in support of a worker who is victim of an infringement of any right or obligation related to the principle of equal pay between men and women for equal work or work of equal value, with the latter’s approval.
Amendment 900 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
Amendment 909 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
3. The compensation shall place the worker who has suffered harm in the position in which that person would have been if he or she had not been discriminated based on sex or if no infringement of any of the rights or obligations relating to equal pay between men and women for equal work or work of equal value had occurred. It shall include full recovery of back pay and related bonuses or payments in kind, and compensation for lost opportunities and moral prejudice. It shall also include the right to interest on arrears.
Amendment 911 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
Member States shall ensure that, in legal proceedings aimed at ensuring the enforcement of any right or obligation related to the principle of equal pay between men and women for equal work or work of equal value, the courts or other competent authorities may order, at the request of the claimant and at the expense of the defendant:
Amendment 916 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall take the appropriate measures, in accordance with their national judicial systems, to ensure that, when workers who consider themselves wronged because the principle of equal pay has not been applied to them, establish before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the defendant to prove that there has been no direct or indirect discrimination in relation to pay. This presumption must be based on facts that, at first sight, make it possible to establish the existence of evidence of direct or indirect discrimination.
Amendment 920 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. Member States shall ensure that, in any legal or administrative proceedings concerning direct or indirect discrimination, where an employer failed to comply with any of the rights or obligations related to pay transparency set out in Articles 5 through 9 of this Directive, it shall be for the employer to prove that there has been no such discriminationit has acted in accordance with this Directive and the other applicable legislation in force.
Amendment 924 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. The claimant shall benefit from any doubt that might remain, except where he or she has acted in bad faith.
Amendment 927 #
Proposal for a directive
Article 16 – paragraph 5
Article 16 – paragraph 5
5. Member States need not apply paragraphs 1 to 3 to proceedings in which it is for the court or competent body to investigate the facts of the case.
Amendment 931 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall ensure that national courts have the power to order the disclosure of evidence containing confidential information where they consider it relevant to the claimstrictly necessary in order to resolve the dispute, in the absence of other probative elements and provided that it does not give rise to further injury. They shall ensure that, when ordering the disclosure of such information, national courts have at their disposal effective measures to protect such information.
Amendment 933 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
Amendment 938 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Limitation periods shall not begin to run before the violation of the principle of equal pay between men and women for equal work or for work of equal value or infringement of the rights or obligations under this Directive has ceased and the claimant may knows, or can reasonably be expected to know, about the violation or infringement.
Amendment 946 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. Member States shall ensure that the limitation periods for bringing claims are set at three years at leastThe limitation periods shall be established by Member States in line with their procedural legislation.
Amendment 950 #
Proposal for a directive
Article 19
Article 19
Amendment 963 #
Proposal for a directive
Article 19 – paragraph 1 a (new)
Article 19 – paragraph 1 a (new)
The provisions of the paragraph above shall not apply to micro-enterprises (those with fewer than 10 workers); the general legislation in force shall apply to them instead.
Amendment 965 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, without delay, notify the Commission of those rules and of those measures and of any subsequent amendment affecting them. The Commission shall publish the rules and measures annually, so that Member States may exchange best practice.
Amendment 973 #
Proposal for a directive
Article 20 – paragraph 2 – introductory part
Article 20 – paragraph 2 – introductory part
2. Member States shall ensure that fines are applied to infringements of the rights and obligations relating to equal pay for the same work or work of equal value. They shall set a minimum level for such fines, tailored to the respective size of the undertakings, ensuring real deterrent effect. The level of the fines shall take into account:
Amendment 981 #
Proposal for a directive
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Member States shall establish specific penalties to be imposed in case of repeated infringements of the rights and obligations relating to equal pay between men and women, such as the revocation of public benefits or the exclusion, for a certain period of time, from any award of financial inducements. Infringements affecting different workers over the same period of time shall not be deemed to be repeated infringements.
Amendment 986 #
Proposal for a directive
Article 20 – paragraph 4 a (new)
Article 20 – paragraph 4 a (new)
4a. Equality or monitoring bodies may not be financed using money received from fines.
Amendment 996 #
Proposal for a directive
Article 21 – paragraph 2
Article 21 – paragraph 2
2. Member States shall consider for contracting authorities to introduce, as appropriate, penalties and termination conditions ensuring compliance with the principle of equal pay in the performance of public contracts and concessions. Where Member States’ authorities act in accordance with Article 38(7)(a) of Directive 2014/23/EU, Article 57(4)(a) of Directive 2014/24/EU, or Article 80(1) of Directive 2014/25/EU in conjunction with Article 57(4)(a) of Directive 2014/24/EU, they may exclude or may be required by Member States to exclude any economic operator from participation in a public procurement procedure where they can demonstrate by any appropriate means the infringement of the obligations referred to in paragraph 1, related either to a failure to comply with pay transparency obligations or a pay gap of more than 5 per cent in any category of workers which is not justified by the employer on the basis of objective, gender-neutral criteria criteria that do not discriminate between men and women. This is without prejudice to any other rights or obligations set out in Directive 2014/23/EU, Directive 2014/24/EU or Directive 2014/25/EU.
Amendment 1005 #
Proposal for a directive
Article 24 – paragraph 2
Article 24 – paragraph 2
Amendment 1009 #
Proposal for a directive
Article 25 – paragraph 3
Article 25 – paragraph 3
3. Member States shall provide equality bodies with the adequate resources necessary for effectively carrying out their functions with regard to the respect for the right to equal pay between men and women for the same work or work of equal value. Member States shall consider allocating amounts recovered as fines pursuant to Article 20 to the equality bodies for that purpose.
Amendment 1016 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. Each Member State shall designate a body (‘monitoring body’) for tThe monitoring and support of the implementation of national legal provisions implementing this Directive and shall make the necessary arrangements for the proper functioning of such body. The monitoring body may be part of existing bodies or structures at national levelbe carried out by each Member State’s equality body, in collaboration with the labour inspectorate.
Amendment 1023 #
Proposal for a directive
Article 26 – paragraph 3 – point a
Article 26 – paragraph 3 – point a
(a) to raise awareness among public and private undertakings and organisations, social partners and the general public to promote the principle of equal pay and the right to pay transparencyfor men and women for equal work or work of equal value;
Amendment 1030 #
Proposal for a directive
Article 26 – paragraph 3 – point b
Article 26 – paragraph 3 – point b
(b) to tackle the causes of the gender pay gap between men and women and devise tools to help analyse and assess pay inequalities;
Amendment 1040 #
Proposal for a directive
Article 26 – paragraph 3 – point e
Article 26 – paragraph 3 – point e
(e) to aggregate data on the number and types of pay discrimination claims brought before the courts and complaints brought before the competent public authorities, including equality bodies.;
Amendment 1041 #
Proposal for a directive
Article 26 – paragraph 3 – point e a (new)
Article 26 – paragraph 3 – point e a (new)
(ea) to aggregate annual data on the estimated number of pay discrimination claims, broken down between the courts and other competent public authorities, such as equality bodies.
Amendment 1049 #
Proposal for a directive
Article 26 – paragraph 4
Article 26 – paragraph 4
4. Member States shall provide the Commission with the data referred to in paragraph 3, points (c), (d), (e) and (ef) to the Commission annually. The Commission shall publish those data annually, so that Member States may exchange best practice.
Amendment 1058 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
This Directive shall not affect in any way the right to negotiate, conclude and enforce collective agreements and to take collective action in accordance with national law or practice, but shall be interpreted in such a way that, once the Directive enters into force and has been transposed, the actions of the social partners are reinforced.
Amendment 1060 #
Proposal for a directive
Article 28 – paragraph 1
Article 28 – paragraph 1
Member States shall provide the Commission (Eurostat) with up-to-date gender pay gap datadata on the pay gap between men and women annually and in a timely manner. These statistics shall be broken down by gendersex, economic sector, working time (full- time/part-time), economic control (public/private ownership) and age and be calculated on an annual basis. In addition, a distinction shall be drawn between elements that can be explained and elements where the difference cannot be explained using objective criteria that do not discriminate between men and women. The Commission shall publish this up-to-date information annually, for the purposes of assessing the success of this Directive.
Amendment 1068 #
Proposal for a directive
Article 28 – paragraph 1 a (new)
Article 28 – paragraph 1 a (new)
The Commission has estimated the percentage reduction in the salary gap following the application of the measures provided for in this Directive to be between 5% and 10% in the relevant Member States over a period of six years18a, a target against which the statistics referred to in the paragraph above shall be measured. _________________ 18a SWD(2021) 42, page 77.
Amendment 1073 #
Proposal for a directive
Article 30 – paragraph 1
Article 30 – paragraph 1
Member States may entrust the social partners with the implementation of this Directive, where the social partners jointly request to do so, provided that Member States take all the necessary steps to ensure that the results sought by this Directive are guaranteed at all times. Such a joint request shall be deemed to have been made if the most representative social organisations in each Member State have expressed an opinion.
Amendment 1086 #
Proposal for a directive
Article 32 – paragraph 1
Article 32 – paragraph 1
1. By [eight years after the entry into force] Member States shall communicate to the Commission all information on how this Directive has been applied and what has been its impact in practice, including, in particular, the following parameters: (1) number and percentage of undertakings that have been required to carry out a joint pay assessment; (2) follow-up analysis of the remedies put in place by the relevant undertakings following the introduction in each Member State of voluntary pay transparency measures or pay review structures; (3) number of administrative or judicial litigation proceedings that have been initiated following the transposition of this Directive in each Member State; and (4) collective agreements that include the implementation of pay transparency measures by social partners.
Amendment 1090 #
Proposal for a directive
Article 32 – paragraph 2
Article 32 – paragraph 2
2. On the basis of the information provided by Member States following its transposition in the respective Member States, the Commission shall submit a report to the European Parliament and the Council on the implementation of this Directive and propose, where appropriate, legislative amendments.