Recital (52) · Directive (EU) 2023/970

(52)In accordance with the case- law of the Court of Justice^note, Directive 2006/54/EC establishes provisions to ensure that the burden of proof shifts to the respondent when there is a prima facie case of discrimination. Nevertheless, it is not always easy for victims and courts to know how to establish even that presumption. In case C-109/88, the Court of Justice held that when a system of pay is totally lacking in transparency, the burden of proof should be shifted to the respondent, irrespective of the worker showing a prima facie case of pay discrimination. Accordingly, the burden of proof should be shifted to the respondent where an employer does not comply with the pay transparency obligations set out in this Directive, for instance by refusing to provide information requested by the workers or not reporting on the gender pay gap, where relevant, save where the employer proves that such an infringement was manifestly unintentional and of a minor character.

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Defined terms · 12

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category of workers
means workers performing the same work or work of equal value grouped in a non-arbitrary manner based on the non-discriminatory and objective gender-neutral criteria referred to in Article 4(4), by the workers’ employer and, where applicable, in cooperation with the workers’ representatives in accordance with national law and/or practice.
direct discrimination
means the situation in which one person is treated less favourably on grounds of sex than another person is, has been or would be treated in a comparable situation;
equality body
means the body or bodies designated pursuant to Article 20 of Directive 2006/54/EC;
gender pay gap
means the difference in average pay levels between female and male workers of an employer expressed as a percentage of the average pay level of male workers;
indirect discrimination
means the situation in which an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified on the basis of a legitimate aim, and the means of achieving that aim are appropriate and necessary;
labour inspectorate
means the body or bodies responsible, in accordance with national law and/or practice, for control and inspection functions in the labour market, save that, where provided for in national law, the social partners may carry out those functions;
median gender pay gap
means the difference between the median pay level of female and median pay level of male workers of an employer expressed as a percentage of the median pay level of male workers;
median pay level
means the pay level at which half of the workers of an employer earn more and half of them earn less;
pay
means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which a worker receives directly or indirectly (complementary or variable components) in respect of his or her employment from his or her employer;
pay level
means gross annual pay and the corresponding gross hourly pay;
quartile pay band
means each of four equal groups of workers into which they are divided according to their pay levels, from the lowest to the highest;
work of equal value
means work that is determined to be of equal value in accordance with the non-discriminatory and objective gender-neutral criteria referred to in Article 4(4);