Trading In and With Europe:
The Law of the European Union
(L05.3013) By Joseph Weiler
Fall 1997
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Gabrielle Defrenne
v.
Societe Anonyme Belge de Navigation Aerienne Sabena
Case 43/75
[1976] E.C.R. 455, [1976] 2 C.M.L.R. 98
8 APRIL 1976
I -- Facts and written procedure
[Gabrielle Defrenne was employed as an air hostess by Sabena from December
10, 1951 to February 15, 1968. She brought an action before the Tribunal
du travail of Brussels on 13 March 1968 for compensation for the loss she
had suffered in terms of salary, allowance on termination of service and
pension as a result of the fact that air hostesses and male members of the
air crew performing identical duties did not receive equal pay. Following
a judgement dismissing her claims, Defrenne appealed to the Cour du Travail
of Brussels. The court decided, pursuant to Article 177 of the EEC Treaty,
to stay the proceedings until the Court of Justice had given a preliminary
ruling on the following questions:
1. Does Article 119 of the Treaty of Rome introduce directly into the national
law of each Member State of the European Community the principle that men
and women should receive equal pay for equal work and does it, therefore,
independently of any national provision, entitle workers to institute proceedings
before national courts in order to ensure its observance, and if so as from
what date?
2. Has Article 119 become applicable in the internal law of the Member States
by virtue of measures adopted by the authorities of the European Economic
Community (if so, which, and as from what date?) or must the national legislature
be regarded as alone competent in this matter?]
II -- Written observations submitted to the Court
* * *
The Government of the United Kingdom considers that. . .
(a) The obligation imposed on the Member States by Article 119 does not
satisfy the criteria of clarity and precision evolved by the Court.
Article 119 does not contain a comprehensive definition of the principle
of equal pay for equal work. The very use of the word 'principle' indicates
that it is concerned with a concept of a very general nature. It is for
this reason that Article 1 of Council Directive No 75/117 of 10 February
1975 on the approximation of the laws of the Member States relating to the
application of the principle of equal pay for men and women [citation omitted]
includes a definition of the principle, thereby supplying some clarity and
precision which was considered to be lacking in the text of the Article
itself.
* * *
This directive left it to each Member State to work out, by means of national
legislation, the practical details of implementing the principle. This issue
can be only determined by some form of legislative, as distinct from judicial,
process.
In addition, Article 119 does not make it clear whether the comparison between
the pay of men and women workers is to made within the context of a particular
employment or across the whole range of a particular trade. Similarly, it
does not settle the question whether the special benefits received by women
workers from their employers by reason of their employment, in relation
to such matters as pregnancy, are to be excluded in operating the principle
of equal pay, or whether in some circumstances such a benefit may fall within
the ambit of 'any other consideration'.
* * *
(c) The need for legislative action on the part of the Member States appears
from the formulation of the obligation imposed on them by Article 119 in
the form of a general statement of principle. Directive No 75/117 acknowledged
this need; in Article 8 it requires Member States to put into force the
legislation necessary to comply with the directive within one year of its
notification and thus to ensure the application of the general principle
contained in Article 119. In the absence of such national implementing legislation
an obligation of the kind contained in Article 119 is incomplete and cannot
properly be completed by interpretative judicial decisions.
(d) The reply to the first question must therefore be in the negative.
(e) In this context it is necessary to bear in mind that the attribution
of direct effects to Article 119 may have harmful consequence on the satisfactory
operation of the law as a whole. It risks creating uncertainty or confusion
in the national and the Community orders into conflict. No matter how faithfully
the Member State has tried to apply a general principle such as that contained
in Article 119, there is always room for argument whether the national legislation
conforms precisely with the principle. The uncertainty of the law can, moreover,
only be dispelled by a ruling of the Court of Justice and, in the meanwhile,
individuals will have arranged their affairs in accordance with their national
law. Furthermore, a provision of the Treaty which is declared to be directly
applicable has had direct effects in all the Member States ever since its
entry into force. The national law of each Member State therefore runs the
risk of being called in question retroactively. The retroactive alteration
of the law conflicts with certain general principles which should also form
part of the legal order of the Community.
(f) The consequences which the retroactive attribution of direct effects
to Article 119 could have on the position of employers may be so great as
to affect the economies of the Member States. Certain agreements, dating
back to 1 January 1973 or even, as regards the original Member States, to
1 January 1962, could be thrown into doubt; certain relationships of long
standing would have to be readjusted. In the United Kingdom the Equal Pay
Act 1970 gives employers until the end of 1975 to phase in equal pay. A
decision attributing direct applicability to Article 119 could throw the
social and economic situation in the United Kingdom into confusion.
* * *
The Government of Ireland maintains that. . . .
(a) The text of Article 119 itself does not permit the construction that
it produces a direct effect in domestic law so as to create rights and obligations
between employers and employees. If the authors of the Treaty had wished
it to be otherwise, Article 119 should not have been addressed to the Member
States. It would have been sufficient to provide that as from the end of
the first stage, men and women in the Community should receive equal pay
for equal work and, in so far as Member States had any obligation under
the Article, it was merely an implied obligation to take the necessary steps
to support its implementation.
(b) An analysis of the decision of the court of Justice in the matter of
direct applicability shows that, essentially, the Court has held those provisions
of the EEC Treaty to be directly applicable whose aim is to ensure the attainment
of the 'fundamental freedoms' provided for by the Treaty, in particular
the free movement of goods, persons and services, by means of the abolition
of restrictions or the prohibition of fresh restrictions. Their object is
to benefit the Community as a whole, rather than a particular class of persons.
Their realization is closely linked to the basic tasks and activities of
the Community, as set out in Articles 2 and 3 as amplified in Article 7
of the Treaty. In no instance do they involve direct intervention in contractual
relationships between individual persons.
By contrast, the legal effect of the interpretation of Article 119 as a
provision which is directly applicable between persons would be in the field
of private law, particularly in the law of contract arising from the employer/employee
relationship, rather than in public law. There is thus a fundamental distinction
to be drawn between Article 119 and the other provisions which the Court
has held to be directly applicable.
Unlike the latter, Article 119 is pursuing a social objective which is limited
to a specified class of persons, that is, women workers. However desirable
it may be, this objective must be regarded in the light of, and subject
to, the basic tasks and activities of the Community as set out in Articles
2 and 3 of the Treaty.
As Article 119 is in an essentially different category from that of the
other articles which the Court of Justice has held to be directly applicable
the case-law of this Court is of no assistance in answering the first question.
(c) Council directive No 75/117, especially Articles 6 and 8, confirm that
the implementation of Article 119 requires special, and different, measures
in different Member States, and also a period of adjustment, particularly
in the case of the new Member States. The possibility of the direct applicability
of Article 119 as between employer and employee has been rejected by the
authors of the EEC Treaty and the Accession Treaty. Article 119 was deliberately
worded in such a way as to avoid direct effects.
(d) This view is confirmed by the consequences which would follow from a
contrary interpretation. The direct applicability of Article 119 as from
1 january 1973, the date of its accession to the Communities, would certainly
involve for Ireland a financial burden which many employers would be unable
to bear. For the Irish State as an employer the burden of meeting claims
by female state employees for 'equal pay' from the date of accession would
exceed the entire allocation to Ireland from the Community's Regional Fund
from the period 1975 to 1977.
* * *
III -- Replies to question raised by the Court
Following the submission of the written observations, . . . the Court. .
. . request[ed] the Government of the United Kingdom, the Government of
Ireland and the Commission to give written replies to several questions
before the opening of the oral procedure.
As regards the repercussions of attributing direct effects to Article 119
on the financial stability of undertaking, the Government of the United
Kingdom maintains that the cumulative effects of the resulting increases
in labour costs would seriously aggravate the problems of controlling inflation.
The financial implications vary in terms of the proportion of women doing
'equal work' with men, the difference between men's rates and women's rates
for equal work, liquidity problems and the proportion of labour costs to
total costs. The footwear and food industries, laundries, retail distribution
and the clothing industry have a particularly high proportion of women doing
equal work. The highest differential between men's rates and women's rates
exist in the textile, clothing, footwear, biscuit manufacturing and engineering
industries. Many firms, in various sectors, have serious cash-flow problems.
The proportion of labour costs to total costs is particularly high in the
shipbuilding, instrument engineering, clothing, paper and printing and pottery
industries. The clothing industry is thus running a particularly high potential
risk. Discrimination in rates of pay between men and women is not limited
to any particular type of occupation. The overall increase in labour costs
as a result of introducing equal pay is likely to be of the order of 3.5%
of the national wages and salaries bill, which was intended to be spread
over 5 years, ending in 1975.
The Government of Ireland maintains that to attribute direct effects to
Article 119 retroactively to 1 January 1973 would be to impose a burden
on the Irish economy which it is not in a position to support. The attribution
of direct effects in even a limited area, that is, only in relations between
individual persons and Member States, would involve extremely heavy financial
obligations, As regards the private sector it appears that these obligations
cannot be directly estimated. They must, however, affect privately-owned
companies and small firms, the activities of the textile, clothing and footwear,
food processing, light engineering and paper and printing industries in
particular, as well as sections of the retail trade. In many of the sectors
referred to the majority of the work force would have a claim for equal
pay. The average figure for the order of increase in wage and salary bills
involved in the immediate implementation of equal pay for men and women
in manufacturing industry would be 5%. It would be higher in the most sensitive
sectors. Article 6 of the EEC Treaty imposes a duty on all the institutions
of the Community, including the Court of Justice, to take care not to prejudice
the internal financial stability of the Member States.
As regards the question of direct effect, it must be noted that neither
concept of 'equal pay' nor that of 'equal work' is sufficiently precise
for Article 119 to be regarded as directly applicable. The fact that this
provision may be applied in the public sector in no way affects its interpretation.
It cannot be clear and precise in one sector and not in another. Furthermore,
such a difference would lead to flagrant discrimination in favour of the
public sector. The employees in the public sector would hold their right
directly under Article 119, whilst those in the private sector would hold
theirs under the national implementing rules. In their capacity as employers
the Member States are not subject to any more compelling obligations than
the employers in the private sector.
* * *
[DECISION:]
1. By a judgment of 23 April 1975, received at the Court Registry on 2 May
1975, the Cour du travail, Brussels, referred to the Court under Article
177 of the EEC Treaty two questions concerning the effect and implementation
of Article 119 of the Treaty regarding the principle that men and women
should receive equal pay for equal work.
2. These questions arose within the context of an action between an air
hostess and her employer, Sabena S.A., concerning compensation claimed by
the applicant in the main action on the ground that, between 15 February
1963 and 1 February 1966, she suffered as a female worker discrimination
in terms of pay as compared with male colleagues who were doing the same
work as 'cabin steward'.
3. According to the judgment containing the reference, the parties agree
that the work of an air hostess is identical to that of a cabin steward
and in these circumstances the existence of discrimination in pay to the
detriment of the air hostess during the period in question is not disputed.
The first question (direct effect of Article 119)
4. The first question asks whether Article 119 of the Treaty introduces
'directly into the national law of each Member State of the European Community
the principle that men and women should receive equal pay for equal work
and does it therefore, independently of any national provision, entitle
workers to institute proceedings before national courts in order to ensure
its observance?'
5. If the answer to this question is in the affirmative, the question further
enquires as from what date this effect must be recognized.
6. The reply to the final part of the first question will therefore be given
with the reply to the second question.
7. The question of the direct effect of Article 119 must be considered in
the light of the nature of the principle of equal pay, the aim of this provision
and its place in the scheme of the Treaty.
8. Article 119 pursues a double aim.
9. First, in the light of the different stages of the development of social
legislation in the various Member States, the aim of Article 119 is to avoid
a situation in which undertakings established in States which have actually
implemented the principle of equal pay suffer a competitive disadvantage
in intra-Community competition as compared with undertakings established
in States which have not yet eliminated discrimination against women workers
as regards pay.
10. Secondly, this provision forms part of the social objectives of the
Community, which is not merely an economic union, but is at the same time
intended, by common action, to ensure social progress and seek the constant
improvement of the living and working conditions of their peoples, as is
emphasized by the Preamble to the Treaty.
11. This aim is accentuated by the insertion of Article 119 into the body
of a chapter devoted to social policy whose preliminary provision, Article
117, marks 'the need to promote improved working conditions and an improved
standard of living for workers, so as to make possible their harmonization
while the improvement is being maintained'.
12. This double aim, which is at once economic and social, shows that the
principle of equal pay forms part of the foundations of the Community.
13. Furthermore, this explains why the Treaty has provided for the complete
implementation of this principle by the end of the first stage of the transitional
period.
14. Therefore, in interpreting this provision, it is impossible to base
any argument on the dilatoriness and resistance which have delayed the actual
implementation of this basic principle in certain Member States.
15. In particular, since Article 119 appears in the context of the harmonization
of working conditions while the improvement is being maintained, the objection
that the terms of this article may be observed in other ways than by raising
the lowest salaries may be set aside.
16. Under the terms of the first paragraph of Article 119, the Member States
are bound to ensure and maintain 'the application of the principle that
men and women should receive equal pay for equal work'.
17. The second and third paragraphs of the same article add a certain number
of details concerning the concepts of pay and work referred to in the first
paragraph.
18. For the purposes of the implementation of these provisions a distinction
must be drawn within the whole area of application of Article 119 between,
first, direct and overt discrimination which may be identified solely with
the aid of the criteria based on equal work and equal pay referred to by
the article in question and, secondly, indirect and disguised discrimination
which can only be identified by reference to more explicit implementing
provisions of a Community or national character.
19. It is impossible not to recognize that the complete implementation of
the aim pursued by Article 119, by means of the elimination of all discrimination,
direct or indirect, between men and women workers, not only as regards individual
undertakings but also entire branches of industry and even of the economic
system as a whole, may in certain cases involve the elaboration of criteria
whose implementation necessitates the taking of appropriate measures at
Community and national level.
20. This view is all the more essential in the light of the fact that the
Community measures on this question, to which reference will be made in
answer to the second question, implement Article 119 from the point of view
of extending the narrow criterion of 'equal work', in accordance in particular
with the provisions of Convention No 100 on equal pay concluded by the International
Labour Organization in 1951, Article 2 of which establishes the principle
of equal pay for work 'of equal value'.
21. Among the forms of direct discrimination which may be identified solely
by reference to the criteria laid down by Article 119 must be included in
particular those which have their origin in legislative provisions or in
collective labour agreements and which may be detected on the basis of a
purely legal analysis of the situation.
22. This applies even more in cases where men and women receive unequal
pay for equal work carried out in the same establishment or service, whether
public or private.
23. As is shown by the very findings of the judgment making the reference,
in such a situation the court is in a position to establish all the facts
which enable it to decide whether a woman worker is receiving lower pay
than a male worker performing the same tasks.
24. In such situation, at least, Article 119 is directly applicable and
may thus give rise to individual rights which the courts must protect.
* * *
27. The terms of Article 119 cannot be relied on to invalidate this conclusion.
28. First of all, it is impossible to put forward an argument against its
direct effect based on the use in this article of the word 'principle',
since, in the language of the Treaty, this term is specifically used in
order to indicate the fundamental nature of certain provisions, as is shown,
for example, by the heading of the first part of the Treaty which is devoted
to 'Principles' and by Article 113, according to which the commercial policy
of the Community is to be based on 'uniform principles'.
29. If this concept were to be attenuated to the point of reducing it to
the level of a vague declaration, the very foundations of the Community
and the coherence of its external relations would be indirectly affected.
30. It is also impossible to put forward arguments based on the fact that
Article 119 only refers expressly to 'Member States'.
31. Indeed, as the Court has already found in other contexts, the fact that
certain provisions of the Treaty are formally addressed to the Member States
does not prevent rights from being conferred at the same time on any individual
who has an interest in the performance of the duties thus laid down.
32. The very wording of Article 119 shows that it imposes on States a duty
to bring about a specific result to be mandatorily achieved within a fixed
period.
33. The effectiveness of this provision cannot be affected by the fact that
the duty imposed by the Treaty has not been discharged by certain Member
States and that the joint institutions have not reacted sufficiently energetically
against this failure to act.
34. To accept the contrary view would be to risk raising the violation of
the right to the status of a principle of interpretation, a position the
adoption of which would not be consistent with the task assigned to the
Court by Article 164 of the Treaty.
* * *
38. Furthermore it is not possible to sustain any objection that the application
by national courts of the principle of equal pay would amount to modifying
independent agreements concluded privately or in the sphere of industrial
relations such as individual contracts and collective labour agreements.
39. In fact, since Article 119 is mandatory in nature, the prohibition on
discrimination between men and women applies not only to the action of public
authorities, but also extends to all agreements which are intended to regulate
paid labour collectively, as well as to contracts between individuals.
40. The reply to the first question must therefore be that the principle
of equal pay contained in Article 119 may be relied upon before the national
courts and that these courts have a duty to ensure the protection of the
rights which this provision vests in individuals, in particular as regards
those types of discrimination arising directly from legislative provisions
or collective labour agreements, as well as in cases in which men and women
receive unequal pay for equal work which is carried out in the same establishment
or service, whether private or public.
The second question (implementation of Article 119 and powers of the Community
and of the Member States)
41. The second question asks whether Article 119 has become 'applicable
in the internal law of the Member States by virtue of measures adopted by
the authorities of the European Economic Community', or whether the national
legislature must 'be regarded as alone competent in this matter'.
42. In accordance with what has been set out above, it is appropriate to
join to this question the problem of the date from which Article 119 must
be regarded as having direct effect.
43. In the light of all these problems it is first necessary to establish
the chronological order of the measures taken on a Community level to ensure
the implementation of the provision whose interpretation is requested.
44. Article 119 itself provides that the application of the principle of
equal pay was to be uniformly ensured by the end of the first stage of the
transitional period at the latest.
45. The information supplied by the Commission reveals the existence of
important differences and discrepancies between the various States in the
implementation of this principle.
46. Although, in certain Member States, the principle had already largely
been put into practice before the entry into force of the Treaty, either
by means of express constitutional and legislative provisions or by social
practices established by collective labour agreements, in other States its
full implementation has suffered prolonged delays.
47. In the light of this situation, on 30 December 1961, the eve of the
expiry of the time-limit fixed by Article 119, the Member States adopted
a Resolution concerning the harmonization of rates of pay of men and women
which was intended to provide further details concerning certain aspects
of the material content of the principle of equal pay, while delaying its
implementation according to a plan spread over a period of time.
48. Under the terms of that Resolution all discrimination, both direct and
indirect, was to have been completely eliminated by 31 December 1964.
* * *
53. For its part, in order to hasten the full implementation of Article
119, the Council on 10 February 1975 adopted Directive No 75/117 on the
approximation of the laws of the Member States relating to the application
of the principle of equal pay for men and women [citation omitted].
54. This Directive provides further details regarding certain aspects of
the material scope of Article 119 and also adopts various provisions whose
essential purpose is to improve the legal protection of workers who may
be wronged by failure to apply the principle of the equal pay laid down
by Article 119.
55. Article 8 of this Directive allows the Member States a period of one
year to put into force the appropriate laws, regulations and administrative
provisions.
56. It follows from the express terms of Article 119 that the application
of the principle that men and women should receive equal pay was to be fully
secured and irreversible at the end of the first stage of the transitional
period, that is, by 1 January 1962.
57. Without prejudice to its possible effects as regards encouraging and
accelerating the full implementation of Article 119, the Resolution of the
Member States of 30 December 1961 was ineffective to make any valid modification
of the time-limit fixed by the Treaty.
58. In fact, apart from any specific provisions, the Treaty can only be
modified by means of the amendment procedure carried out in accordance with
Article 236.
59. Moreover, it follows from the foregoing that, in the absence of transitional
provisions, the principle contained in Article 119 has been fully effective
in the new Member States since the entry into force of the Accession Treaty,
that is, since 1 January 1973.
* * *
64. As has been shown in the reply to the first question, no implementing
provision, whether adopted by the institutions of the Community or by the
national authorities, could adversely affect the direct effect of Article
119.
65. The reply to the second question should therefore be that the application
of Article 119 was to have been fully secured by the original Member States
as from 1 January 1962, the beginning of the second stage of the transitional
period, and by the new Member States as from 1 January 1973, the date of
entry into force of the Accession Treaty.
66. The first of these time-limits was not modified by the Resolution of
the Member States of 30 December 1961.
67. As indicated in reply to the first question, Council Directive No 75/117
does not prejudice the direct effect of Article 119 and the period fixed
by that Directive for compliance therewith does not affect the time-limits
laid down by Article 119 of the EEC Treaty and the Accession Treaty.
68. Even in the areas in which Article 119 has no direct effect, that provision
cannot be interpreted as reserving to the national legislature exclusive
power to implement the principle of equal pay since, to the extent to which
such implementation is necessary, it may be relieved by a combination of
Community and national measures.
The temporal effect of this judgment
69. The Governments of Ireland and the United Kingdom have drawn the Court's
attention to the possible economic consequences of attributing direct effect
to the provisions of Article 119, on the ground that such a decision might,
in many branches of economic life, result in the introduction of claims
dating back to the time at which such effect same into existence.
70. In view of the large number of people concerned such claims, which undertakings
could not have foreseen, might seriously affect the financial situation
of such undertakings and even drive some of them to bankruptcy.
71. Although the practical consequences of any judicial decision must be
carefully taken into account, it would be impossible to go so far as to
diminish the objectivity of the law and compromise its future application
on the ground of the possible repercussions which might result, as regards
the past, from such a judicial decision.
72. However, in the light of the conduct of several of the Member States
and the views adopted by the Commission and repeatedly brought to the notice
of the circles concerned, it is appropriate to take exceptionally into account
the fact that, over a prolonged period, the parties concerned have been
led to continue with practices which were contrary to Article 119, although
not yet prohibited under their national law.
73. The fact that, in spite of the warnings given, the Commission did not
initiate proceedings under Article 169 against the Member States concerned
on grounds of failure to fulfil an obligation was likely to consolidate
the incorrect impression as to the effects of Article 119.
74. In these circumstances, it is appropriate to determine that, as the
general level at which pay would have been fixed cannot be known, important
considerations of legal certainty affecting all the interests involved,
both public and private, make it impossible in principle to reopen the question
as regards the past.
75. Therefore, the direct effect of Article 119 cannot be relied on in order
to support claims concerning pay periods prior to the date of this judgment,
except as regards those workers who have already brought legal proceedings
or made an equivalent claim.
* * *
On those grounds, THE COURT . . . hereby rules:
1. The principle that men and women should receive equal pay, which is laid
down by Article 119, may be relied on before the national courts. These
courts have a duty to ensure the protection of the rights which that provision
vests in individuals, in particular in the case of those forms of discrimination
which have their origin in legislative provisions or collective labour agreements,
as well as where men and women receive unequal pay for equal work which
is carried out in the same establishment or service, whether private or
public.
2. The application of Article 119 was to have been fully secured by the
original Member States as from 1 January 1962, the beginning of the second
stage of the transitional period, and by the new Member States as from 1
January 1973, the date of entry into force of the Accession Treaty. The
first of these time-limits was noT modified by the Resolution of the Member
States of 30 December 1961.
3. Council Directive No 75/117 does not prejudice the direct effect of Article
119 and the period fixed by that Directive for compliance therewith does
not affect the time-limits laid down by Article 119 of the EEC Treaty and
the Accession Treaty.
4. Even in the areas in which Article 119 has no direct effect, that provision
cannot be interpreted as reserving to the national legislature exclusive
power to implement the principle of equal pay since, to the extent to which
such implementation is necessary, it may be achieved by a combination of
Community and national provisions.
5. Except as regards those workers who have already brought legal proceedings
or made an equivalent claim, the direct effect of Article 119 cannot be
relied on in order to support claims concerning pay periods prior to the
date of this judgment.
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