Defrenne -v- Sabena (No 2); ECJ 8 Apr 1976

References: C-43/75, [1976] ICR 547, [1976] ICR 547, [1981] 1 All ER 122, R-43/75, [1976] EUECJ R-43/75, [1976] ECR 455, [1976] EUECJ C-43/75
Links: Bailii, Bailii
ECJ The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It 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 directly in legsilative 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.
(A) the application of the principle that men and women should receive equal pay was to have been fully secured by the original member states as from 1 January 1 – language of the case : french. 1962, the end of the first stage of the transitional period. Without prejudice to its possible effects as regards encouraging and accelerating the full implementation of article 119, the resolution of the member states of 31 December 1961 was ineffective to make any valid modification of the time-limit fixed by the treaty. Apart from any specific provisions, the treaty can only be modified by means of the amendment procedure carried out in accordance with article 236. (B) in the absence of transitional provisions, the principle that men and women should receive equal pay has been fully effective in the new member states since the entry into force of the accession treaty, that is, since 1 January 1973. The council directive no 75/117 was incapable of diminishing the effect of article 119 or of modifying its effect in time.
Important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question of pay as regards the past. 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.
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.
It is demeaning for a woman air hostess to be told that she cannot continue as cabin crew after the age of 40. The court however limited the effect of its ruling to future breaches.
Europa 1. The principle that men and women should receive equal pay, which is laid down by article 119, is one of the foundations of the community. It 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 directly in legsilative 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. ( A ) the application of the principle that men and women should receive equal pay was to have been fully secured by the original member states as from 1 january1 – language of the case: french. 1962, the end of the first stage of the transitional period. Without prejudice to its possible effects as regards encouraging and accelerating the full implementation of article 119, the resolution of the member states of 31 december 1961 was ineffective to make any valid modification of the time-limit fixed by the treaty. Apart from any specific provisions, the treaty can only be modified by means of the amendment procedure carried out in accordance with article 236.
( B ) in the absence of transitional provisions, the principle that men and women should receive equal pay has been fully effective in the new member states since the entry into force of the accession treaty, that is, since 1 january 1973. The council directive no 75/117 was incapable of diminishing the effect of article 119 or of modifying its effect in time. 3. Important considerations of legal certainty affecting all the interests involved, both public and private, make it impossible in principle to reopen the question of pay as regards the past. 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. 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.
Statutes: Council Directive 75/117/EEC
This case cites:

  • See Also – Gabrielle Defrenne -v- Belgian State ECJ (C-80/70, R-80/70, Bailii, [1971] EUECJ R-80/70, [1974] 1 CMLR 494, [1971] ECR 445)
    ECJ The concept of pay as defined in article 119 of the EEC Treaty does not include social security schemes or benefits directly governed by legislation without any element of agreement within the undertaking or . .

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  • Cited – Preston and Others -v- Wolverhampton Healthcare NHS and Others; Fletcher and Others -v- Midland Bank Plc HL (Times 09-Feb-98, House of Lords, Gazette 26-Feb-98, Bailii, [1998] UKHL 6, [1998] 1 All ER 528, [1998] 1 WLR 280, [1998] ICR 227)
    ‘Employment’ in context of a sex discrimination claim referred to a current employment contract even in context of there having been a series of repeated contracts of employment. The question was referred to the European Court of Justice. . .
  • Applied – Smith -v- Macarthys Ltd EAT
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  • Cited – Macarthys Ltd -v- Smith CA ([1981] QB 180, [1980] 3 WLR 929, [1981] 1 All ER 111, [1980] ICR 672)
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  • Cited – Powerhouse Retail Ltd and others -v- Burroughs and others; Preston and others -v- Wolverhampton Healthcare NHS Trust and others (No 3) HL (Bailii, [2006] UKHL 13, Times 13-Mar-06, House of Lords, [2006] 3 All ER 193, [2006] IRLR 381, [2006] ICR 606, [2006] Pens LR 113, [2007] 2 CMLR 38)
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  • See also – Defrenne -v- Sabena Airlines ECJ (Europa, [1979] ECR 1365, C-149/77, R-149/77, Bailii, [1978] EUECJ R-149/77)
    LMA Ms Defrenne was an air hostess employed by SABENA, a Belgian airline company. She brought an action against the airline based on Art.119 [now141] EC. Ms Defrenne claimed that in paying their male stewards . .
  • Cited – Armstrong and others -v- Newcastle Upon Tyne NHS Hospital Trust CA (Bailii, [2005] EWCA Civ 1608, [2006] IRLR 124)
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