In-between the Principle of Equality and Legal Formalism: Indirect Pay Discrimination in the Light of the CJEU Judgment in Case C-314/23 Air Nostrum

The judgment of the Court of Justice of the European Un­ion (CJEU) of October 2024 in Air Nostrum (Case C-314/23) constitutes an important point of reference in the ongoing de­bate on the scope of protection against indirect pay discrim­ination. The Court adopted a position of a rather ambivalent nature: on the one hand, it broadened the concept of “pay” within the meaning of Directive 2006/54/EC, extending it to include daily allowances representing a lump-sum reimburse­ment of expenses incurred by workers in connection with the performance of their duties outside their usual place of work; on the other hand, it limited the application of the principle of equality to cases involving “the same work or work of equal value.” Consequently, this ruling may contribute to perpetu­ating existing pay disparities in sectors marked by a high de­gree of occupational segregation based on gender. The judg­ment highlights the need for a more progressive approach to the phenomenon of structural discrimination – one that goes beyond formal declarations of equality.

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