Sunday, 7 December 2008

European Union: Equal pay for equal work

Eliminating inequalities and promoting equality between men and women is one of the general aims of the European Community.

Equal pay for men and women for equal work or work of equal value applies in the context of working life.

We present the relevant treaty provisions on gender equality and point to further reading containing practical information and access to secondary European Community (European Union) legislation on equal opportunities and equal treatment.

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Gender equality

Article 3(2) TEC Equality

Article 3(1) of the Treaty establishing the European Community (TEC) lists the activities of the Community.

Article 3(2) TEC is a horizontal clause with the aim to eliminate inequalities and to promote equality between men and women (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/45):

2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.


Article 13 TEC Non-discrimination

Article 13 TEC sets out the general European Community powers to combat discrimination and to adopt incentive measures (OJ 29.12.2006 C 321 E/48):

Article 13 TEC

1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.

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Article 141 TEC

Article 141 (ex Article 119) of the Treaty establishing the European Community (TEC) sets out the principle of gender equality in working life in some detail.

Equal pay for men and women for equal work or work of equal value is laid down as the norm. Although the principle is addressed to the member states, the ECJ has declared that it has direct effect, meaning that it binds parties to collective agreements as well as individual employers and imployees.

Pay is defined to include any consideration, and the criteria for calculating pay need to be objective.

Legislative acts concerning equal opportunities and equal treatment of men and women can be adopted according to the co-decision procedure.

So called positive discrimination is allowed in order to compensate for disadvantages.

The current Article 141 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:

Article 141 TEC

1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. For the purpose of this article, ‘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, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.

3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.


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Original Lisbon Treaty (ToL)

Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC and point 120 concerns Article 143 TEC, so there are no specific amendments to Article 141 TEC (OJ 17.12.2007 C 306/82).

The unwieldy procedure referred to in Article 251 is replaced by the ordinary legislative procedure, in accordance with the horizontal amendment mentioned in Article 2, point 2(c) of the original Lisbon Treaty (OJ 17.12.2007 C 306/42).

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Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X and that the Article 141 TFEU (ToL) was to be renumbered Article 157 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).


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Consolidated Lisbon Treaty

After the horizontal amendment Article 157 of the Treaty on the Functioning of the European Union (TFEU), in the consolidated TFEU published in the Official Journal of the European Union, OJ 9.5.2008 C 115/117–118, appears as follows:

(TITLE X
SOCIAL POLICY)

Article 157 TFEU
(ex Article 141 TEC)

1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. For the purpose of this Article, ‘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, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.

3. The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.


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Protocol No 33

Rolled over and annexed to the Lisbon Treaty is Protocol (No 33) concerning Article 157 of the Treaty on the Functioning of the European Union (OJ 9.5.2008 C 115/319):

PROTOCOL (No 33)

CONCERNING ARTICLE 157 OF THE TREATY ON THE
FUNCTIONING OF THE EUROPEAN UNION

THE HIGH CONTRACTING PARTIES,

HAVE AGREED upon the following provision, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

For the purposes of Article 157 of the Treaty on the Functioning of the European Union, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.

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Charter of Fundamental Rights

The Charter of Fundamental Rights of the European Union has been politically binding on the EU institutions since it was proclaimed in Nice in December 2000.

The Charter was an integrated part of the Constitutional Treaty (as Part II), but it did not become legally binding since the ratification processes of the Constitution petered out after the negative referendums in France and the Netherlands.

The Treaty of Lisbon does not incorporate the text of the Charter, but the European Union ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU).

For the purposes of this blog post, we recall the general non-discrimination Article 21 of the Charter of Fundamental Rights, which includes the prohibition of discrimination on the grounds of sex (OJ 14.12.2007 C 303/7):


Article 21
Non-discrimination

1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.


The equality between men and women is evoked by Article 23 of the Charter of Fundamental Rights:

Article 23
Equality between women and men

Equality between women and men must be ensured in all areas, including employment, work and pay.

The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.

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Charter explanations

The Explanations relating to the Charter of Fundamental Rights were originally drawn up during the European Convention. They have been technically adjusted but not materially updated since then. The latest version concerning Article 21 was published in OJ 14.12.2007 C 303/24:

Explanation on Article 21 — Non-discrimination

Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.

There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.

Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.


More specifically in the context of Article 157 TFEU, the explanation concerning Charter Article 23 facilitates understanding and guides interpretation in the following way:

Explanation on Article 23 — Equality between women and men

The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers.

It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.

The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4).

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Equal opportunities

Citizens


In a series of European General Guides addressed to EU citizens, the European Commission offers a brochure called Equal rights and opportunities for men and women in the European Union (last update 2005; 12 pages):

http://ec.europa.eu/youreurope/nav/fi/citizens/services/eu-guide/opportunities/opportunities_en.pdf

Commission activities

The Commission’s DG Employment, Social Affairs and Equal Opportunities web page offers links to information about i.a. Living an working abroad, Tackling discrimination, Equal opportunities for all, Rights at work and Employment:

http://ec.europa.eu/social/home.jsp?langId=en

There are a number of useful links, covering most aspects of Gender equality, starting from page:

http://ec.europa.eu/employment_social/gender_equality/index_en.html


Legal

For the legally minded gender equality legislation opens up with a General Overview:

http://ec.europa.eu/employment_social/gender_equality/legislation/index_en.html

This is a gateway to the following pages: Equal treatment in the EC Treaty, Legal acts on equal treatment (secondary legislation), Case law of the European Court of Justice, Bulletin on Legal Issues in Equality, and Reports.

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Community agencies

Community agencies relevant to sex discrimination and gender equality are at least:


The European Agency for Safety and Health at Work (EU-OSHA), in Bilbao, Spain:

http://europa.eu/agencies/community_agencies/osha/index_en.htm


The European Foundation for the Improvement of Living and Working Conditions (Eurofound), in Dublin, Ireland:

http://europa.eu/agencies/community_agencies/eurofound/index_en.htm



Ralf Grahn