EU sex discrimination law and the principle of equal pay

Term Paper, 2012

12 Pages, Grade: 1,7




2.1 Article 157
2.2 Directive 2006/54/EC

3.1 1st Case: C-191/03 North Western Health Board v. McKenna 2005 ECR I-07631
3.2 2nd Case: C-342/93 Gillespie and others v. Northern Health and Social Services Boards 1996 ECR I-475
3.3 3rd Case: C-313/02 Wippel v. Peek & Cloppenburg GmbH & Co. KG. 2004 ECR I-9483

4.1 History
4.1.1 From Article 119 EEC to Article 157 TFEU
4.1.2 Case Law
4.2 Content of Article 157 TFEU
4.2.1 What is “pay” in Article 157 TFEU?
4.2.2 Widening the definition of “pay”
4.2.3 Equal pay for equal work and work of equal value
4.2.4 Types of discrimination



1 Introduction

The Council of Europe Commissioner for Human Rights, Thomas Hammarberg, said in his speech on 8th March 2011 „Every day women in Europe experience one of the most deep-rooted injustices - being paid less than a man for work of equal value.“1 Equality between women and men is one of the objectives of the European Union. With the aid of legislation, case law and amendments to the contracts it had gradually succeeded to give emphasis to this principle and apply it in the EU.

This work will now try to show you this development. In the beginning, there will be a description of legal framework in the EU. This framework essentially bases on Article 157 TFEU and the Directive 2006/54. Afterwards follows the development of case studies by the jurisprudence of the ECJ in more detail. Keep on with the content of Article 157 TFEU with a closer look on the questions: What is pay? What is equal pay for equal work or work of equal value? When exists discrimination? What is the difference between direct and indirect discrimination?

“Well come forward, but still long way to go”: So the initial assessment of the agreement is to promote equal opportunities between women and men in the private sector. Is it right and more: is it enough? Let's see if this question can be answered at the end of this work.

2 Legal Framework

The Article 157 TFEU and the Directive 2006/54/EC represent the legal framework for the EU’s sex equality law in relation to equal pay.

2.1 Article 157

The principle of equal pay was accepted very early as a focus in the EU and was already a huge content of Article 119 of the Treaty of Rome in 1957, and later in Article 141. Since 2009 it was added finally in the Treaty on the Functioning of the European Union in Article 157.2 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, because the right to equal pay is directly effective, enforceable against private individuals and States.3 The EU law does not prevent a Member State from conferring greater rights to equal pay like having rules on the burden of proof that are more favourable to employees. In the following part the content of the Directive 2006/54/EC will be described and afterwards there will be given an once-over to the ECJ decisions, history and the topic of Art. 157 TFEU.

2.2 Directive 2006/54/EC

The Directive 2006/54/EC was accepted as a part of the EU’s general program of legislative incorporation4 and should enlarge clarity and update and simplify provisions about equal treatment in order to make gender equality law more accessible for a broader public5. The Directive 2006/54/EC is a summary of some important law regulations and it now connects some of the most important guidelines in relation to equal pay directive, equal treatment in employment directives, equal treatment in occupational social security directive or burden of proof directive. This elaboration is limited to the range of equal pay regarding to the directive 2006/54/EC. The aim of the directive is to abolish the gender discrimination “for the equal work or for work to which equal value is attributed”6 with respect to the payment. The EU member states were indentured to implement the agreements of Directive 2006754/EC to their national legislation until August 2008.

3 ECJ decisions: equal pay cases under Art. 157 TFEU

Below there are presented three example cases to illustrate how far the European Court of Justice had ruled equal pay in the sense of the scope of Article 157 TFEU or its predecessor Article 141 EC. All these rules are still applied.

3.1 1st Case: C-191/03 North Western Health Board v. McKenna 2005 ECR I-07631

The ECJ has ruled that no discrimination based on sex, where national legislation on sick leave, workers who are absent due before the maternity leave of her pregnancy- related illness and workers absent due to some disease, treated equally, and both a reduction in pay in when the absence exceeds a certain duration. This applies only if the paid benefits are not that low that by the pregnant worker falls into financial distress. The same applies to a rule which provides that sickness absence irrespective of whether the illness linked to pregnancy, will be deducted from the total number of paid sick leave that an employee can claim within a specified period.

The case McKenna, treated in the same falls within the scope of Article 141 EC and Directive 75/117/EEC on the approximation of the laws of the member states concerning the application of the principle of equal pay for men and women.7

Finally the court decided in that case that pay in the sense of Article 141 EC and Directive 75/117 can not also fall within the scope of Directive 76/207/EEC.

3.2 2nd Case: C-342/93 Gillespie and others v. Northern Health and Social Services Boards 1996 ECR I-475


In the following case about seventeen plaintiffs, from different North Irish Health Services, bewailed against their employers due to the height of the payment they got during their maternity leave. During the year 1988 the plaintiffs were in maternity leave. But in November some collective negotiations in the health sector led to a pay increase backdated to 1st of April. Because of a calculation method based on the General Council Handbook, the plaintiffs couldn’t get an increase of their payment. The pay increase based on the average weekly payment of the employees during the last two-month. Due to the fact that the employment agreement based on a collective agreement, which states that the employees earn the full weekly pay for the first four weeks, for the next two weeks they earn 90% of their full weakly pay and for twelve weeks only the half of their full weekly pay. So in 1989 the plaintiffs argued that they were discriminated because of their sex regarding to the Article 119 in connection with the Directive 75/117 EC.

Judicial decision:

Based on legal restrictions and on collective agreements, the services an employer has to pay his employees during a maternity leave represents a remuneration within the meaning of Article 119 EC in connection with the directive 75/117EC. In the case of a salary increase the employees have the right of a wage increase if they are at the time the maternity leave. The pregnancy-related absent employees have the right to get the same money increase like their colleagues which work in company. Finally it should be recalled that all pay during the maternity leave is a fee and therefore according under Article 119 of the Treaty and Directive 75/117.

3.3 3rd Case: C-313/02 Wippel v. Peek & Cloppenburg GmbH & Co. KG.


In September 1998, Mrs. Wippel and Peek & Cloppenburg, concluded a service contract in form of a "framework agreement on employment service on demand". It agreed the extent and the organization of work at case-to-case basis between the parties. Mrs. Wippel was appropriate to assume, that P & C prospected her of being able to work about three days per week and two Saturdays per month. But her contract of employment hadn’t specifically recoded that

Mrs. Wippel understands this uncertainty as unequal treatment in comparison to fulltime employees and required that P & C paid her a compensation for the monthly difference between the pay for her actual working hours and the working hours, that could be required, if she would work the maximum amount of hours.

Judicial decision:

In this case, the court had at first to clarify the question whether the underlying contract is a regular employment contract, which falls within the scope of Directive 76/207, the principle of equal treatment between men and women, particularly in relation to working conditions, or whether such a contract falls under Article 141 EC and Directive 75/117 which is about the principle of equal pay for men and women.8

The ECJ stated that the contract of employment had to be distinguished as falling only under the scope of the equal treatment Directive 76/207/EEC or only under the scope of Article 141 EC (now 157 TFEU) and the equal pay Directive 75/117/EEC. Further that the contract ruled the working time on the principle of “work on demand” and thus the pursuit of the concerned workers occupation. Due to this, the contract fell under Directive 76/207/EEC. The scope of Article 141 EC and the Directive 75/117/EEC was not applied just because of financial consequences due to the type of contract.


1 Human Rights Europe, Hammarberg hits out at “deep rooted injustice” of gender-based wage inequality, 2011 ( rooted-injustice-of-gender-based-wage-inequality/) (last access on the 10th of January 2012).

2 Early, J., Equal pay for work of equal value: EU legal framework and ECJ case- law, 2011

( ((last access on the 10th of January 2012).

3 Art. 157 TFEU (ex.Art. 141 EC) provided that men and women should receive equal pay for equal work; see in case: ECJ, 8 April 1976, Case 43/75 (Gabrielle Defrenne v Sabena) 1976 ECR 455.

4 Directive 2006/54/EC of the European Parliament and of the Council of July 5, 2006 on the

implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)2006 OJ L/204/23.

5 See Burri, S., Prechal,S., The Transposition of recast Directive 2006/54/EC, 2009

( (last access on the 10th of January 2012).

6 Article 4 Directive 2006/54/EC.

7 ECJ, 8.9.2005, Case C-191/03 (North Western Health Board / Margaret McKenna). 2004 ECR I-9483

8 ECJ, 12.10.2004, Case C-313/02 (Wippel vs Peek & Cloppenburg GmbH & Co. KG)

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EU sex discrimination law and the principle of equal pay
Carl von Ossietzky University of Oldenburg  (Rechtswissenschaften)
Advanced Lectures in EU Economic Law
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ISBN (eBook)
ISBN (Book)
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Equal pay, equal work, Geschlechterdiskriminierung, Gleichbehandlung, Scope, Discrimination, Law, Vergütung
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Anna Grasmik (Author), 2012, EU sex discrimination law and the principle of equal pay, Munich, GRIN Verlag,


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