Right to information under the Pay Transparency Act: Federal Labour Court provides clarity

To what extent does the right to information under the Pay Transparency Act apply? The Federal Labour Court has clarified key issues regarding the temporal scope and the company-specific reference framework of this right. At the same time, the judgement makes it clear that the forthcoming implementation of the European Pay Transparency Directive is likely to bring about significant changes.

The Federal Labour Court (judgement of 19 February 2026 – 8 AZR 83/25) recently had to consider the extent to which an employee is entitled to information regarding her pay. Pursuant to section 10(1), first sentence, in conjunction with sections 11 to 16 of the Pay Transparency Act (EntgTranspG), the claimant requested information from her employer regarding the criteria and procedures used to determine her own pay and that of her male colleagues in comparable positions. She also sought information on the statistical median – extrapolated to full-time equivalents – of the average monthly gross pay, the basic pay and the share options granted as part of the remuneration for male employees in comparable positions.

Whilst the Cologne Labour Court (ArbG) upheld the claim, the Cologne Regional Labour Court (LAG) dismissed the claims on appeal. The Federal Labour Court partially quashed the LAG’s decision and, in doing so, set out key principles regarding the scope and structure of the right to information under the EntgTranspG.

Temporal scope of the right to information

The claimant sought information covering a period of several years. However, the Federal Labour Court limited the claim to the calendar year preceding the date of the application.

According to the explanatory memorandum to the Act, the right to information under Section 10(1), third sentence, of the EntgTranspG generally extends exclusively to the average monthly gross remuneration for the ‘preceding calendar year’ (BT-Drs. 18/11133, p. 58). The calendar year is to be understood as the period from 1 January to 31 December. Insofar as the claimant sought information for periods beyond this, the claims were unfounded. Further claims for information regarding the criteria used to determine her own pay and that of her male colleagues were also rejected by the Federal Labour Court. Consequently, the only remaining issue to be decided was the claim for information on comparative pay, in particular the statistical median of gross pay for male employees in comparable positions.

Company-specific nature of the right to information

The Federal Labour Court clarified that the right to information on comparative pay is company-specific. The relevant definition here is that of ‘company’ under the Works Constitution Act. This refers to an organisational unit with independent managerial authority and a work-related purpose – unlike the concept of ‘undertaking’, which does not refer solely to the employer’s legal entity.

By contrast, the Regional Labour Court had taken the view that the ‘workplace-specific’ nature did not extend to information on comparative pay. Section 12(2) of the EntgTranspG should be systematically subdivided in the same way as Section 11(2) and (3) of the EntgTranspG: Nos. 1 and 2 covered pay regulations – understood as criteria and procedures for determining pay – whilst No. 3 regulated only comparative pay. A ‘workplace-related’ scope under No. 1 therefore did not extend to claims for information on comparative pay. The scope of the duty to provide information should consequently be aligned with the scope of application of the respective pay regulations.

The Federal Labour Court rejects this line of argument. The provisions in question are not defences but limits on claims. Section 12(2) of the EntgTranspG comprehensively regulates the duty to provide information; a distinction, as assumed by the Regional Labour Court, between pay regulations on the one hand and comparative pay on the other cannot be inferred from the Act. The company-specific nature is expressly laid down in Section 12(2)(1) of the EntgTranspG. Whilst the individual sub-paragraphs of paragraph 2 concern different subjects of regulation, a distinction between remuneration regulations and comparative remuneration is not required. On the contrary: the connection between the claims for information is expressly taken into account. The pay regulations referred to in Section 12(2)(1) and (2) mean those regulations which form the basis for determining pay and thus also determine the comparative pay. Subparagraph (3) clarifies, by way of supplement and without restriction, that for the entire obligation to provide information, no comparison need be made between the relevant employment groups themselves.

Nor does an obligation to provide information at company level rather than at establishment level arise from an isolated examination of Section 12(2)(2) of the EntgTranspG. This provision merely stipulates that regionally varying pay levels in different establishments of the same employer do not have to be disclosed, even where the work is the same or of equal value. Nor does the present case give rise to a different interpretation. The Federal Labour Court acknowledges that a workplace-specific obligation to provide information may lead to unsatisfactory results in practice if remuneration is determined at group level and the same or equivalent work is performed regardless of the employee’s placement within the workplace. However, the legislature deliberately opted for a workplace-specific approach (see BT-Drs. 18/11133, p. 61).

Classification under European law

According to the case law of the European Court of Justice, Article 157 of the Treaty on the Functioning of the European Union (TFEU), which is directly applicable, is relevant where the conditions of pay for employees of different sexes performing the same or equivalent work are attributable to a single source. However, this case law relates exclusively to the right to equal pay and does not extend to the structure of the right to information under the Pay Transparency Act. A company-wide right to information cannot be derived from it.

Furthermore, it is expressly clarified that the new Pay Transparency Directive does not apply to the present, concluded case.

Current developments in European law regarding the Pay Transparency Act

The Pay Transparency Directive 2023/970 (ETRL) has established a new legal framework at European level, which, in particular, provides for more extensive reporting obligations for employers. Germany failed to meet the deadline for transposing this Directive. An extension was expressly rejected by the European Commission.

Article 7 of the Directive establishes a right to information; however, like many provisions of the Directive, it is broadly worded and requires further clarification. Compared with the existing rights to information under the Federal Labour Court judgement at hand, this results in significant changes. For instance, Article 7 of the ETRL provides neither a time limit nor a requirement for the right to information to be linked to a specific workplace. When calculating the average pay under Article 7(1) of the ETRL, the entire group of employees performing the same or equivalent work is taken into account. There is no restriction to individual workplaces or regions.

It remains to be seen how the Directive will be transposed in Germany. Until then, it has no direct effect on private employers. Employees’ rights to information must therefore continue to be fulfilled exclusively in accordance with the EntgTranspG. However, even before national transposition, the labour courts must interpret national law in accordance with the Directive on a case-by-case basis and be guided by the provisions of the ETRL. A further judgement of the Federal Labour Court of 23 October 2025 (8 AZR 300/24) already outlines the consequences of such an interpretation in line with the Directive: According to EU law, a presumption of discrimination on grounds of sex already exists where the claimant receives lower pay than a person of the opposite sex performing the same or at least equivalent work. The size of the comparison group within the meaning of Section 12(2), third sentence, of the EntgTranspG or the median salary of the persons being compared is irrelevant in this context.

Conclusion

The Federal Labour Court confirms the company-specific nature of the right to information under the EntgTranspG and expressly distinguishes this from a company-wide obligation to provide information. In practical terms for workplaces, this means that employees may only request information on comparative pay at the level of the respective workplace. However, in light of current developments in European law, it remains to be seen whether and to what extent the right to information will be extended in future. Employers should therefore continue to respond to requests for information on a workplace-specific basis and keep a close eye on further developments at European level.

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