Italy is one of the few EU Member States to have implemented the Pay Transparency Directive on time – and has opted for the strictest option: the salary must already be mentioned in the job advertisement. What does this mean for German employers who advertise job vacancies internationally?
The EU Pay Transparency Directive has been in force since 6 June 2023; the implementation deadline expired on 7 June 2026. Apart from Italy, only a few countries have so far transposed the Directive into national law – Germany and the majority of Member States have let the deadline pass. The Directive is designed to tackle the gender pay gap through more transparent remuneration structures. A key element is the pre-contractual obligation to provide information on the starting salary or salary range – the specific method of implementation (job advertisement, prior to the interview, etc.) is left to the Member States. Only Italy has already made it mandatory to mention it in the job advertisement.
If a company based in Germany advertises a job throughout Europe, the question arises as to the law applicable to the job advertisement. Neither the Directive itself nor the Rome I and Rome II Regulations – which otherwise determine the applicable law in cross-border cases – make any provision on this matter. However, Article 12 of the Rome II Regulation does at least regulate liability for fault during contract negotiations: this is governed by the law applicable to the future employment contract. This legal idea can be transferred to pre-contractual information obligations under the EU Pay Transparency Directive: If the intended employment contract were subject to Italian law, the salary information would already be mandatory in the job advertisement.
The law governing an employment contract is determined primarily by the choice of law made by the parties, or, in the alternative, by the habitual place of work or the registered office of the employing branch, unless there are closer connections to another legal system. This may also lead to the application of Italian law if, to ensure the best possible candidate is appointed to the advertised job, the company is prepared to enter into an employment contract governed by Italian law, or to employ a staff member in Italy and/or even to employ them at the Italian branch. Furthermore, Article 8 (1), sentence 2 of the Rome I Regulation sets limits on the choice of law: this must not deprive the employee of the protection afforded by mandatory provisions of the law objectively applicable. In addition, overriding mandatory provisions under Article 9 of the Rome I Regulation could apply the Italian obligation of transparency regardless of the contract statute chosen. Whether an Italian court would classify the duty to provide information on remuneration as a mandatory protective provision or even as an overriding provision remains open in the absence of case law – whilst both terms must be interpreted narrowly, a residual risk remains even if another legal system is chosen.
To be on the safe side, it is advisable to state the salary expectations in the job advertisement as a precaution – for instance, as a country-specific disclaimer for Italy.
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Dr Corinne Klapper
Hanna Eschbach
