Pay transparency without implementing legislation: what can an employee actually invoke today?

Filip Tilleman, Peter Stroobants and Lieven Goossens — PKF BOFIDI Legal, employment law

Belgium failed to meet the 7 June 2026 deadline for transposing Directive (EU) 2023/970. No federal bill has been tabled, discussions in the National Labour Council have stalled at the request of the employers’ group, and the government asked the European Commission not to initiate infringement proceedings for six months. On 2 September 2026, the Commission published an FAQ that is expressly non-binding and leaves the Belgian questions of interpretation unanswered.

Since then, we have regularly received the same question: can an employee already invoke that directive against us today?

The conventional answer — “no, a directive has no horizontal direct effect” — is legally correct but misleading in practice. It is correct because the statement is true. It is misleading because it answers the wrong question. The relevant question is not whether the directive applies between private parties, but which layer of the pay transparency framework is already enforceable today.

The answer is therefore more nuanced than the reassuring “no” might suggest.

The EU law framework: which layer can be invoked?

Let us begin with what is settled law. Since Faccini Dori (C-91/92, 14 July 1994) and Marshall I (152/84, 26 February 1986), there has been no doubt: a directive cannot, as such, be invoked against a private employer. Directive 2023/970 is no exception. Anyone claiming that Belgian employers have been subject to the directive since 8 June 2026 is mistaken.

That is not the end of the matter, however, because the Court of Justice has developed two alternative routes that are directly relevant here.

The first is the Treaty itself. Since Defrenne II (43/75, 8 April 1976 — a Belgian case against Sabena), Article 119 EEC, now Article 157 TFEU, has had horizontal direct effect. Employees can invoke the principle of equal pay directly against their employer, and the Court expressly rejected the objection that this would interfere with privately concluded agreements. The judgment did limit that effect to discrimination identifiable “solely on the basis of a legal analysis”. That limitation has largely been eroded by subsequent case law (Jenkins, Bilka, Enderby).

The second is the Charter. In Egenberger (C-414/16, 17 April 2018), the Grand Chamber held that Article 21(1) of the Charter “is sufficient in itself to confer on individuals a right which they may rely on as such in disputes between them in a field covered by EU law” (para. 76). The Court added that, in this respect, Article 21 does not differ from the Treaty provisions, “even where the discrimination derives from contracts between individuals” (para. 77). Cresco Investigation (C-193/17, 22 January 2019) took that reasoning to its logical conclusion: until the Member State amends its legislation, a private employer must, on the basis of Article 21 of the Charter, extend the benefit to the disadvantaged group. In other words, levelling up at the employer’s expense. In K.L. v X (C-715/20, 20 February 2024), the Court attributed the same autonomous horizontal direct effect to Article 47 of the Charter.

This brings the pivotal provision into view. In Association de médiation sociale (C-176/12, 15 January 2014), the Court refused to accord horizontal direct effect to Article 27 of the Charter because that provision “must be given more specific expression in European Union or national law” in order to become fully effective (para. 45). The decisive question is therefore whether a provision is sufficient in itself. And — something often overlooked — the Court added that combining it with a directive does not remedy that deficiency (para. 49).

Apply that test to Directive 2023/970 and the picture becomes clear. The substantive principle of equal pay for equal work or work of equal value is sufficient in itself. Employees have been able to invoke it since 1976. The directive adds nothing in that respect.

What the directive does add is an enforcement and transparency infrastructure: the individual right to information (Article 7), the information obligation during recruitment (Article 5), reporting obligations (Article 9), and the joint pay assessment where there is a 5% gap (Article 10). These are precisely the types of provisions that require institutional and procedural implementation: thresholds, deadlines, forms and a supervisory authority. They do not pass the AMS test. An applicant who currently demands a salary range before a Belgian labour court on the basis of the directive will lose that claim.

For international groups, this immediately reveals a second layer. A group that already reports in Germany, the Netherlands or France but not in Belgium creates a difference between entities that is explained not by differences in pay policy, but by differences in the pace of transposition. That is defensible. It becomes considerably less so, however, when the group-wide job architecture has already been reviewed for gender neutrality and the Belgian entity alone remains outside that exercise.

What Belgium al has – and what is therefore already enforceable

The debate about the directive distracts from a more uncomfortable finding: a substantial part of what Directive 2023/970 seeks to achieve has already been part of Belgian law for fourteen years. Anyone reassured by the thought that “there has not yet been any transposition” overlooks the obligations that already apply.

The Gender Act of 10 May 2007 expressly brings pay within its scope. Article 6(2)(2) covers “the award and determination of pay”, all current or future benefits in cash or in kind, and explicitly “occupational and job classification”. Article 6(2)(1) also covers job offers themselves.

The decisive provision is Article 33(1). As soon as an employee establishes facts from which discrimination on grounds of sex may be presumed, “the respondent must prove that there has been no discrimination”. That reversal already exists. The directive does not introduce it; it confirms and refines it. Paragraphs 2 and 3 of the same article provide a non-exhaustive list of facts that may suffice: a pattern of unfavourable treatment, comparability with a reference person, general statistics and basic statistical evidence.

Nor is the sanction merely symbolic. In employment relationships, Article 23(2)(2) provides for fixed compensation equal to six months’ gross remuneration, reduced to three months if the employer demonstrates that it would have applied the same treatment on non-discriminatory grounds. In addition, the separate protection against retaliation under Article 22(6) likewise entitles the employee to six months’ gross remuneration.

The Pay Gap Act of 22 April 2012, amended by the Act of 12 July 2013, added Articles 13/1 to 13/3. Undertakings that normally employ an average of at least fifty employees must prepare a detailed analysis of their remuneration structure every two years. It must be discussed within three months of the end of the financial year and submitted to the works council — or, in its absence, the trade union delegation — at least fifteen days before the meeting. The full form applies from an average of one hundred employees onwards. The social balance sheet must be broken down by sex.

Two nuances deserve emphasis, because they are often lost in commercial communications: an action plan is not automatically mandatory (the works council decides, in consultation with the employer, whether it is appropriate), and the appointment of a mediator is optional.

Then there is Collective Labour Agreement No. 25 of 15 October 1975, as amended by Collective Labour Agreement No. 25ter of 9 July 2008. Since 2008, Article 1 has referred to equal pay “for equal work or work of equal value”. Article 3 requires job evaluation systems to ensure equal treatment “in the selection of criteria, in the weighting of those criteria and in the system used to convert job points into pay points”. It also requires sectors and undertakings that have not yet done so to subject their systems to a gender-neutrality review “and, where appropriate, make the necessary corrections”.

That obligation has existed since 2008. It has been declared generally binding. Yet in our casework, it has rarely been implemented effectively.

What Belgium genuinely does not have today can be stated just as clearly: no individual right to pay information, no prohibition on asking about a candidate’s salary history, and no obligation to state salary ranges in job advertisements. The Belgian system is collective — the analysis report goes to the employee representative bodies, not to the individual employee. That is precisely where the directive will create a fundamental shift.

One asymmetry deserves particular attention. Belgium has transposed the directive unevenly. By decree of 16 May 2024, the Wallonia-Brussels Federation became the first public authority in the EU to transpose it for its institutions and education system. Flanders followed in 2026 with a decree on pay transparency for the Flemish public services, local authorities and education sector, introducing an individual right to information, a ban on asking about salary history, reporting thresholds and a joint pay assessment where there is a gap of at least 5%. Only the federal private sector remains unaffected.

The result is that an employee of a Flemish local authority is currently entitled to pay information, while a neighbour working for a private employer is not. That situation is not sustainable in the long term, and it is an argument that will surface in litigation.

How a labour court would deal with this today

From a procedural perspective, the question of direct effect is largely academic. No lawyer will base a claim on it if a simpler route is available. And such a route exists.

The first is consistent interpretation. Since Marleasing (C-106/89, 13 November 1990), national courts have been required to interpret national law, as far as possible, in the light of the wording and purpose of a directive, including in a horizontal dispute. Adeneler (C-212/04, 4 July 2006) clarified that, in the event of late transposition, that obligation takes effect once the transposition deadline expires. For Directive 2023/970, that date was 7 June 2026. Dominguez (C-282/10, 24 January 2012) requires the court to take the entirety of national law into consideration. The limit is an interpretation contra legem (Impact, C-268/06, 15 April 2008).

Set that obligation alongside what was described above in section 2, and the position becomes concrete. A court deciding whether an employee has “established facts from which discrimination may be presumed” within the meaning of Article 33 of the Gender Act is applying an open-ended standard. Since 7 June 2026, it must interpret that standard in the light of Directive 2023/970 — including the four evaluation criteria in Article 4(4) (skills, effort, responsibility and working conditions) and the underlying idea that a lack of transparency in the pay structure is itself problematic.

This is not a theoretical construct. It is the most predictable route a dispute will take.

The second route runs through Collective Labour Agreement No. 25 itself. Article 5 gives every employee who considers themselves disadvantaged — or the representative employee organisation to which they belong — a right of action to enforce the principle of equal pay. This opens the door to a trade union claim without requiring the individual employee to go to court personally. Article 6 also provides that the specialised joint committee may advise the court if requested to do so. It is a rarely used route, but it exists.

The third is State liability, directed against the Belgian State rather than the employer. Francovich (C-6/90 and C-9/90, 19 November 1991) and Brasserie du Pêcheur/Factortame (C-46/93 and C-48/93, 5 March 1996) set out the conditions; Dillenkofer (Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, 8 October 1996) adds that a complete failure to transpose a directive within the prescribed period constitutes, in itself, a sufficiently serious breach. That said, the Belgian situation weakens that per se reasoning as regards the federal component.

What does all of this mean for social dialogue? The pause in the National Labour Council is not a neutral state of affairs. Every month without a framework shifts the centre of gravity of rule-making towards the courts, where it will develop case by case and without thresholds or transitional measures. For employers, a negotiated framework is almost always more predictable than one shaped by the courts.

Conclusion: the directive is not your risk.

Set the various layers side by side, and the conclusion is concise.

Directive 2023/970 cannot currently be invoked against a private employer in Belgium, and its transparency and reporting obligations will not become enforceable in that way for the time being. Anyone who says that nothing changes until legislation is adopted is correct on that point.

But the substantive principle of equal pay has been horizontally enforceable since 1976. Since 2007, the burden of proof has rested with the employer once a presumption arises. Since 2008, a generally binding collective labour agreement has required job evaluation systems to be reviewed for gender neutrality. And since 7 June 2026, courts have had to interpret those existing rules in the light of a directive that describes in considerable detail what a defensible pay structure looks like.

The practical conclusion is therefore not “wait and see”, nor is it “act as though the directive already applies”. It is more precise: a pay structure that you cannot explain was already a risk in 2012; the directive merely makes that risk visible. An employer that invests today in a robust, gender-neutral job classification system is not doing so to anticipate future legislation. It is doing so to comply with obligations that already exist and to be able to discharge the burden of proof that already rests with it.

That takes months of work, not weeks. And it is the only part of this matter that does not depend on when the legislature wakes up.