Short answer
Directive (EU) 2023/970 requires employers to disclose an initial pay level or range to job applicants before interview or otherwise before pay negotiation, stop asking about pay history, and use gender-neutral vacancy notices. Workers must have access to objective, gender-neutral pay-setting and progression criteria and can request their own pay level plus average pay levels, broken down by sex, for workers doing the same work or work of equal value. Larger employers face phased gender-pay-gap reporting from 2027 or 2031.
The Directive does more than generate information. Ordinarily, once a worker establishes facts supporting a presumption of direct or indirect pay discrimination, the employer must prove there was none. If the employer breached specified transparency duties, the burden shifts to the employer without that ordinary prima facie step, unless it proves the breach was manifestly unintentional and minor.
Member States had to transpose the Directive by 7 June 2026. Its practical operation now depends on each country's implementing law. Article 157 TFEU and existing equal-pay legislation and case law continue independently; Article 157 can be invoked in litigation between private parties.
The legal framework and current timing
The strengthens the equal-pay principle in Article 157 TFEU and the . It covers public- and private-sector employers and workers whose employment relationship is defined by the law, collective agreements or practice of a Member State, taking Court of Justice case law into account. Recruitment transparency also protects job applicants.
“Pay” is broader than basic salary. It includes ordinary basic wage or salary and complementary or variable components received directly or indirectly, in cash or kind, because of employment. Bonuses, allowances and benefits can therefore require separate comparison rather than disappearing into an overall package.
The transposition deadline was 7 June 2026. Exact procedures, penalties and more favourable worker rules come from national implementing law. Employers should audit both the Directive and the applicable national measure.
What applicants must be told
Article 5 gives an applicant the right to the initial pay or pay range for the position, based on objective, gender-neutral criteria, and any relevant collective-agreement provisions. Timing matters:
Such information shall be provided in a manner such as to ensure an informed and transparent negotiation on pay, such as in a published job vacancy notice, prior to the job interview or otherwise. —
The employer need not necessarily put the range in every advertisement if another compliant method supplies it in time. But disclosing it only after interviewing or asking the candidate to name a figure first defeats the provision's purpose.
Employers may not ask about current or former pay history. Vacancy notices and job titles must be gender-neutral, and recruitment must be non-discriminatory. Pay information must be accessible to persons with disabilities and take their needs into account.
What every worker can obtain
Article 6 requires employers to make easily accessible the objective, gender-neutral criteria used to determine pay, pay levels and pay progression. A Member State may exempt employers with fewer than 50 workers from the progression-criteria element, but not rewrite the wider equal-pay principle.
Under Article 7, a worker may request in writing:
- the worker's individual pay level; and
- average pay levels, broken down by sex, for the category performing the same work or work of equal value.
The employer must answer within a reasonable time and no later than two months. The worker can act personally, through worker representatives or through an equality body and can seek reasonable clarifications where information is incomplete or inaccurate. Employers must remind all workers annually of the right and how to exercise it.
Contractual pay-secrecy clauses cannot prevent workers from disclosing their own pay to enforce equal pay. An employer may restrict use of other Article 7 information to that purpose. Where a response would reveal an identifiable colleague's pay, national law may reserve actual values to representatives, an inspectorate or equality body, which can advise the worker without disclosing the colleague's figure. GDPR safeguards remain applicable.
“Work of equal value” determines the comparison group
Transparency is meaningful only if jobs are grouped without gender bias. Article 4 requires objective, gender-neutral comparison using skills, effort, responsibility and working conditions, plus relevant job-specific factors. Soft skills must not be undervalued. Job titles or collective-agreement grades are evidence, not conclusive answers.
The comparator need not always work at the same site or at the same time. Article 19 permits comparison where a single source establishes the relevant pay conditions, and permits a historical comparator, statistics or a hypothetical comparison when no real comparator exists. In Tesco Stores, the Court confirmed that Article 157 TFEU applies to work of equal value across different establishments where the employer is the single source able to restore equal treatment:
Article 157 TFEU must be interpreted as having direct effect in proceedings between individuals in which failure to observe the principle of equal pay for male and female workers for ‘work of equal value’ ... is pleaded. —
Which employers must publish gender-pay information?
Article 9 introduces phased organisational reporting:
- 250 or more workers: first report by 7 June 2027, then annually;
- 150–249 workers: first report by 7 June 2027, then every three years;
- 100–149 workers: first report by 7 June 2031, then every three years; and
- fewer than 100: voluntary under the Directive, although national law may require reporting.
Reports cover the overall mean and median gender pay gaps, gaps in variable components, proportions receiving variable pay, distribution across quartile bands, and category-level gaps separated into basic and variable components. Management confirms accuracy after consulting worker representatives, who can access the methodology.
Much of the organisational data goes to the designated monitoring authority for publication. Category-level data must go to workers and representatives and, on request, inspectorates and equality bodies. Those actors can demand explanations. Unjustified differences must be remedied within a reasonable time in cooperation with worker representatives and relevant authorities.
When does a 5% gap require a joint assessment?
A reporting employer must conduct a joint pay assessment with worker representatives when three conditions coincide in a worker category:
- average female and male pay differs by at least 5%;
- objective, gender-neutral criteria do not justify the difference; and
- the employer has not remedied it within six months after reporting.
The assessment analyses representation, pay components, reasons, return-from-leave pay improvements, corrective measures and their effectiveness. It is made available to workers and representatives and supplied to the monitoring body.
The 5% figure is a trigger for this structured assessment, not a licence for smaller discriminatory gaps and not automatic proof that every larger difference is unlawful. Equal-pay claims can concern any discriminatory difference; conversely, a numerical gap may be justified by proportionate gender-neutral factors.
How the burden of proof shifts
The ordinary rule in Article 18(1) is familiar from Article 19 of Directive 2006/54: the worker establishes facts from which direct or indirect discrimination may be presumed; the respondent then proves that no pay discrimination occurred. Statistics, a comparator, unexplained patterns, biased job valuation or inconsistent criteria may contribute to the presumption.
Article 18(2) creates a sharper consequence for opacity:
[W]here an employer has not implemented the pay transparency obligations set out in Articles 5, 6, 7, 9 and 10, it is for the employer to prove that there has been no such discrimination. —
The exception is where the employer proves its transparency infringement was both manifestly unintentional and minor. Member States may adopt still more favourable evidence rules. The shift does not make the employer automatically liable; it reallocates the risk of evidential uncertainty and requires a convincing non-discriminatory explanation.
This codifies the Court's earlier response to inaccessible pay systems. In Danfoss, C-109/88, the Court held that where individual pay supplements were completely opaque and female employees could establish only differences in average pay, effectiveness required the employer to prove that its pay practice was not discriminatory. The Directive's recital 52 expressly builds on that principle.
What must be proved after the shift?
The employer can contest whether work is equal or of equal value and can prove that a difference follows objective factors unrelated to sex and applied proportionately. The worker's and comparator's pay must be compared component by component. In Brunnhofer, C-381/99, the Court held that same collective classification is only one indication of equal work and that an employer cannot justify a difference fixed at appointment by later-discovered performance.
National courts must be able to order disclosure of relevant evidence under the employer's control, including confidential evidence with protective measures. Successful claims can yield full back pay, bonuses or benefits in kind, lost opportunities, non-material damage, relevant intersectional harm and interest, without a preset compensation cap. National limitation periods must be at least three years and cannot begin before the claimant knew or could reasonably have known of the infringement, subject to the Directive's detailed national options.
Conclusion
Compliance is not satisfied by publishing a single organisation-wide percentage. Employers need transparent recruitment ranges, documented gender-neutral criteria, a functioning two-month worker-information process, correctly constructed work categories, phased reporting, explanations and remediation. Litigation risk changes when those systems fail: opacity itself can place the burden on the employer. The operative national rules must be checked after the June 2026 transposition deadline, while Article 157 TFEU and the established equal-pay framework remain independently enforceable.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.