19 Amendments of Jeroen LENAERS related to 2021/0050(COD)
Amendment 243 #
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- based 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 discrimination. This directive should 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 framework. This should ensure that the courts or other competent authorities take due account of any situation of disadvantage arising from intersectional 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, and to determine, where relevant, the level of compensation awarded or penaltiesanctions imposed.
Amendment 273 #
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 enterprises. Member States may choose to develop these tools or methodologies in cooperation with social partners or leave the task to them.
Amendment 306 #
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 administrative burden for employers, paying specific attention to micro and small, small and medium-sized enterprises. Where appropriate, measures should be tailored to the size of employers taking into account employers’ headcount. Member States should consider drawing up tools and guidelines for micro, small and medium- sized enterprises in order to facilitate abiding by the obligations set out in this directive.
Amendment 359 #
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 by the workers in an organisation for this purpose. Joint pay assessments should lead to the elimination of gender discrimination in pay.
Amendment 420 #
Proposal for a directive
Recital 41
Recital 41
(41) Litigation costs create a serious disincentive for victims of gender pay discrimination to claim their right to equal pay, leading to insufficient protection and enforcement of the right to equal pay. In order to remove this strong procedural obstacle to justice, successful claimants should be allowed to recover their procedural costs from the defendant. On the other hand, claimants should not be liable for successful defendant’s proceedings costs unless the claim was brought in bad faith, was clearly frivolous or if the non-recovery by the defendant would be considered unreasonable by the courts or other competent authorities under the specific circumstances of the case, for instance having regard to the financial situation of micro-enterprises.
Amendment 429 #
Proposal for a directive
Recital 42
Recital 42
(42) Member States should provide for effective, proportionate and dissuasive penaltiesanctions 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 shsanctions could include fines, which should be set at a minimum level havand taking 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 430 #
Proposal for a directive
Recital 43
Recital 43
(43) Member States should establish specific penaltiesanctions for repeated infringements of any right or obligation relating to equal pay between men and women for the same work or work of equal value, to reflect the severity of the act and further deter such infringements. Such penaltiesanctions may include different types of financial disincentives such as the revocation of public benefits or the exclusion, for a certain period of time, from any further award of financial inducements or from any public tender procedure.
Amendment 431 #
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 objective and gender-neutral factors 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, penaltiesanctions 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 510 #
Proposal for a directive
Article 3 – paragraph 1 – point g a (new)
Article 3 – paragraph 1 – point g a (new)
(ga) ‘workers’ representatives’ means a recognised trade union or other persons designated by the workers in an organisation to represent them in accordance with national law and/or practice;
Amendment 549 #
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- neutral job evaluation and classification systems. Member States may choose to develop these tools or methodologies in cooperation with social partners or leave the task to them.
Amendment 672 #
Proposal for a directive
Article 7 – paragraph 6 a (new)
Article 7 – paragraph 6 a (new)
6a. In order to limit as much as possible the costs and administrative burden for employers, Member States shall consider drawing up tools and guidelines for micro, small and medium- sized enterprises in order to facilitate the implementation of the obligations set out in this article.
Amendment 789 #
Proposal for a directive
Article 8 – paragraph 7
Article 8 – paragraph 7
7. Workers and their representatives, labour inspectorates and/or 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. The employer shall respond to such request within a reasonable time by providing a substantiated reply. Where gender pay differences 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 845 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Employers shall make the joint pay assessments available to workers, workers’ representatives, the monitoring body designated pursuant to Article 26, and/or the equality body and/or the labour inspectorate.
Amendment 955 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
Claimants who prevail on a pay discrimination claim shall have the right to recover from the defendant, in addition to any other damages, reasonable legal and experts’ fees and costs. Defendants who prevail on a pay discrimination claim shall not have the right to recover any legal and experts’ fees from the claimant(s) and costs, unless the claim was brought in bad faith, was clearly frivolous or where such non-recovery is considered manifestly unreasonable under the specific circumstances of the case.
Amendment 964 #
Proposal for a directive
Article 20 – title
Article 20 – title
Amendment 966 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Member States shall lay down the rules on penaltiesanctions applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penaltiesanctions provided for shall be effective, proportionate and dissuasive and may include fines. Member States shall, without delay, notify the Commission of those rules and of those measures and of any subsequent amendment affecting them.
Amendment 968 #
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 ensuring real deterrent effect. TIf fines are applied, the level of the fines shall take into account:
Amendment 983 #
Proposal for a directive
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Member States shall establish specific penaltiesanctions 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.
Amendment 984 #
Proposal for a directive
Article 20 – paragraph 4
Article 20 – paragraph 4
4. Member States shall take all measures necessary to ensure that the penaltiesanctions provided for are effectively applied in practice.