Defrenne v SABENA (No2) [1976] EUECJ C-43/75 (equal pay)

An air hostess claimed compensation for pay discrimination compared to male cabin stewards doing identical work. The Court held that Article 119 EEC Treaty on equal pay has direct effect and can be relied upon before national courts, establishing the principle of equal pay as a foundation of Community law.

Facts

Gabrielle Defrenne, a former air hostess employed by SABENA (the Belgian national airline), brought an action against her employer claiming compensation for pay discrimination. Between 15 February 1963 and 1 February 1966, she received lower pay than her male colleagues who performed identical work as ‘cabin stewards’. The parties agreed that the work was identical and that discrimination in pay existed during the relevant period. The case was referred to the Court of Justice by the Cour du Travail (Labour Court) of Brussels under Article 177 EEC Treaty for a preliminary ruling on the interpretation of Article 119.

Issues

First Question

Whether Article 119 of the EEC Treaty introduces directly into national law the principle that men and women should receive equal pay for equal work, thereby entitling workers to bring proceedings before national courts independently of any national provision.

Second Question

Whether Article 119 became applicable through Community measures or whether the national legislature has exclusive competence in this matter.

Judgment

Direct Effect of Article 119

The Court held that Article 119 pursues a double aim:

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.

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.

The Court distinguished between direct and overt discrimination, identifiable solely with the aid of criteria based on equal work and equal pay, and indirect and disguised discrimination requiring more explicit implementing provisions. Regarding direct discrimination, the Court stated:

The principle of equal pay contained in Article 119 may be relied upon before the national courts and 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.

Temporal Application

The Court established that Article 119 was to be fully secured by original Member States from 1 January 1962 (end of the first stage of the transitional period) and by new Member States from 1 January 1973. The Resolution of Member States of 30 December 1961 could not modify the Treaty time-limit:

Apart from any specific provisions, the Treaty can only be modified by means of the amendment procedure carried out in accordance with Article 236.

Limitation on Retroactivity

Due to legal certainty concerns, the Court limited the retroactive effect:

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. 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.

Implications

This landmark judgment established several crucial principles:

• Article 119 has horizontal direct effect, binding not only public authorities but also private employers and parties to collective agreements
• The principle of equal pay forms part of the foundations of the Community
• Treaty provisions cannot be modified by Member State resolutions outside the formal amendment procedure
• The Court may limit the temporal effects of its judgments in exceptional circumstances based on legal certainty
• Community competence exists alongside national powers in implementing equal pay, achieved through a combination of Community and national provisions

The case remains foundational for EU gender equality law and the doctrine of direct effect of Treaty provisions in employment relationships.

Verdict: The Court ruled that: (1) Article 119 on equal pay has direct effect and may be relied upon before national courts; (2) national courts must protect the rights vested by this provision, particularly regarding discrimination in legislative provisions, collective agreements, or unequal pay for equal work in the same establishment; (3) original Member States should have fully implemented Article 119 by 1 January 1962, new Member States by 1 January 1973; (4) the direct effect cannot support claims for pay periods prior to 8 April 1976 except for workers who had already brought proceedings.

Source: Defrenne v SABENA (No2) [1976] EUECJ C-43/75(equal pay)