The painting

Objective clear rules to achieve results without inconsistencies

Focus on pay setting, sanctions and bargaining

by Giampiero Falasca

26 February 2026

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SOLDI, BANCONOTE EURO CON CALCOLATRICE (Alberto Cattaneo / Fotogramma/Fotogramma, MILANO - 2012-07-13)

3' min read

Translated by AI

Versione italiana

Key points

Salary level
Article 4
Sanzioni

3' min read

Translated by AI

Versione italiana

Businesses need clear, stable and enforceable rules. Especially when the goals set by the European legislator are ambitious and shareable, such as those pursued by the EU directive 2023/970 on equal pay for men and women.

On 5 February, the Council of Ministers approved the draft legislative decree transposing the directive, which is now being examined by the competent parliamentary commissions before final approval. It is appreciable that the Government has tried to take into account the difficulties of application that the directive poses to companies, which are called upon to deal with a complex discipline, full of information requirements, monitoring obligations and potential sanctioning consequences.

The problem is that, in an attempt to simplify, the scheme introduces solutions that may not be fully consistent with the directive's framework. This is a risk that must be avoided at all costs, because a transposition that is not fully aligned would expose the system to internal disputes and possible corrective interventions by national and European jurisprudence, due to the 'non-regression clause', a rule of Community law that prohibits Member States from implementing directives in a restrictive sense.

Salary level

There are at least three points that deserve further investigation. The first concerns the definition of "wage level". The directive adopts a broad notion, referring to gross annual and hourly remuneration, without distinguishing between structural and individual components, in line with the case law of the European Court of Justice, which emphasises a substantive concept of remuneration that is also capable of intercepting indirect discrimination.

The Italia scheme excludes from the concept of salary level individual non-structural economic treatments, such as superminimes, as long as they are based on objective individual criteria. The final draft should clarify this concept well, emphasising that the exclusion of the superminimum is relevant to the extent that it has been paid on the basis of objective parameters. Moreover, superminimums re-emerge at the stage of the individual assessment of possible discrimination. In essence, they are not relevant in the general comparison, in the aforementioned terms (i.e. if they are based on objective criteria), but they may be enhanced in individual litigation.

Article 4

A second sensitive point concerns Article 4, insofar as it introduces a presumption of compliance with the principles of equal pay for employers applying a comparatively more representative national collective agreement, without prejudice to the establishment of any discriminatory individual treatment.

A first, very positive effect of the rule could be to help put out of business the so-called pirate contracts, those agreements lacking real representativeness that, on various fronts, pollute our labour market. The regulation, however, needs some fine-tuning, in order to avoid applications that are incompatible with the directive. In particular, it would be a mistake to think that, by virtue of the mere application of a comparatively more representative collective agreement, an employer would be exempt from the need to comply with the comparative obligations of the directive.

If one wanted to respect the appreciable intention to simplify fulfilment, one could also further clarify an important concept, already mentioned in Article 4, paragraph 2: profiles included in the same contractual level, as defined by the comparatively most representative agreements, are presumed to be of "equal value". On this issue, a structured involvement of the social partners in the development of common criteria for the evaluation of work of equal value could be further stimulated.

Sanzioni

The third point to be further investigated in the final drafting concerns the sanctioning system: compared to the breadth of solutions identified by the directive, the implementation scheme seems to make a choice oriented towards a drastic reduction of the sanctioning mechanisms; a choice that is appreciable from the viewpoint of simplification but, here too, must be carefully assessed so as not to come into conflict with the non-regression clause.