Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (1976)

PAY EQUAL

The direct effect of the principle that men and women should receive equal pay for equal work

Article 119 of the EEC Treaty states that “Each Member State shall in the course of the first stage ensure and subsequently maintain the application of the principle of equal remuneration for equal work as between men and women workers. 

 

For the purposes of this article, remuneration shall mean the ordinary basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the workers’ employment. 

 

Equal remuneration without discrimination based on sex means: 

 

(a) that remuneration for the same work at piece rates shall be calculated based on the same unit of measurement; and 

 

(b) that remuneration for work at time rates shall be the same for the same job”.

 

Now, this article appears in Article 157 of the TFEU, with some changes and additional paragraphs.

 

“1. Each Member State shall ensure that the principle of equal pay for male and female workers for similar work or work of equal value is applied.

 

2. For the purpose of this article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

 

Equal pay without discrimination based on sex means:

 

(a) that pay for the same work at piece rates shall be calculated based on the same unit of measurement;

 

(b) that pay for employment at time rates shall be the same for the same job.

 

3. The European Parliament and the Council, acting following the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for similar work or work of equal value.

 

4. to ensure full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages to make it easier for the underrepresented sex to pursue a vocational activity or to avoid or compensate for disadvantages in professional careers”.

 

This historical case law was the first case that showed an evident inequality between women and men regarding the principle of “Equal pay for equal work”. That is why in this case, the direct effect of Article 119 of the EEC Treaty was granted. 

 

But, the direct effect of this article had no retroactive effect. It was only applied from this judgment’s date and in some cases where workers previously brought legal proceedings or made an equivalent claim.

 

The prohibition on discrimination between men and women applies not only to the action of public authorities but also extends to all agreements intended to regulate paid labour collectively and contracts between individuals. Therefore, Ms Defrenne’s claim succeeded. 

 

Moreover, thanks to this case law, it was clear that the economic and social goals form part of the foundations of the community since the social and economic objectives were not acknowledged in the early periods of European integration.

Case law summary

The Court du Travail, Brussels, referred to the Court under Article 177 of the EEC Treaty two questions in a reference for a preliminary ruling 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.

 

In the main action,  Gabrielle Defrenne brought an action for compensation against Société Anonyme Belge de Navigation Aérienne Sabena because she suffered discrimination in terms of pay compared with male colleagues the same work as an air steward.

 

The Court asked the CJEU 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 federal courts to ensure its observance? And that from what date this effect must be recognized?

 

The CJEU affirmed that this principle may be relied on before the national courts. The National Courts have a duty to ensure the protection of the rights that provision vests in individuals.

 

In its second question, the Court asked whether this article has become applicable in the internal law of the member states by measures adopted by the authorities of the, or whether the national legislature must be regarded as alone competent in this matter, to which the CJEU clarified that the application of this article was to have been fully secured by the original Member States as from 1 January 1962 and by the new member states as from 1 January 1973. The first of these time limits were not modified by the resolution of the member states of 30 December 1961.

 

The Court also clarified that even in the areas in which this article 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.

 

However, except for those workers who have already brought legal proceedings or made an equivalent claim, the direct effect of Article 119 cannot be relied on to support claims concerning pay periods before the date of this judgment.

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