DEFRENNE v SABENA

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI DELIVERED ON 10 MARCH 1976 1

Mr President, completion of 40 years of age. This Members of the Court, clause was applied to Miss Defrenne on 15 . 1. After the solemn declarations made by the Heads of State and of Government Under the terms of her contract, she in Paris in 1972 on the importance received a grant equivalent to one year's of the social aspects of European salary. Miss Defrenne then took two integration, here we have a private actions: individual, a female worker, who succeeds in obtaining from her national On 9 she applied to the court a reference for a preliminary ruling Belgian Conseil d'Etat for annulment of on the interpretation of the provision in the Royal Decree of 3 November which, the EEC Treaty which establishes the for civil aviation crew, laid down special principle of equal treatment for men and rules governing the acquisition of the women in the field of employment. A right to a pension and special procedures reference which in itself is of very for implementation of Royal Decree No modest financial importance provides an 50 of 24 October 1967 concerning opportunity for this Court to clarify retirement pensions and survivors certain aspects of the protection which pensions for employed persons, on the fundamental rights are entitled to receive basis of which her pension had been calculated. within the framework of the Community structure. Giving a preliminary ruling on a This is the second reference for a reference made to it by the Belgian court' preliminary ruling which bears the name (in Case 80/70), this Court, in its of Miss G. Defrenne, a former air hostess judgment of 25 , ruled that a of the Société Anonyme Beige de retirement pension established within Navigation Aérienne (Sabena). the framework of a social security scheme laid down by legislation does not Engaged on 10 December 1951 as a constitute consideration which the 'trainee air hostess' she proceeded, on 1 worker receives indirectly in respect of , under a new contract, to his employment from his employer discharge the responsibilities appropriate within the meaning of Article 119 of the to the category of 'cabin steward, air EEC Treaty ([1971] ECR 445). hostess/principal cabin attendant'. At the same time, on 13 , Earlier, on 15 , Sabena and the worker's trade unions concluded a Miss Defrenne brought proceedings against Sabena before the Tribunal du collective agreement which could not be travail, Brussels, claiming compensation made binding by a royal decree and for the injury she alleged she had which, in fact, has never been binding. suffered owing to the fact that: In conformity with the collective 1. The salary paid to her during the contract, a clause was inserted in the period between 15 and individual contract of the person 1 was FB 12 716 less concerned providing that the contract of than that to which a male 'steward' women members of the cabin crew was with the same seniority would have in all cases to cease automatically on been entitled;

1 — Translated from the Italian.

483 OPINION OF MR TRABUCCHI — CASE 43/75

2. She was entitled to a severance grant provision, entitle workers to institute of FB 166 138; proceedings before national courts in 3. She ought to have been recognized as order to ensure its observance, and if entitled to a higher pension, up to a so as from what date? maximum of FB 334 000. (2) Has Article 119 become applicable in the internal law of the Member States In its judgment on 17 , by virtue of measures adopted by the the Tribunal du travail, Brussels, authorities of the European Econ­ dismissed all three heads of claim omic Community (if so, which, and without recourse to Article 177 of the as from what date?) or must the EEC Treaty. national legislature be regarded as alone competent in this matter? On 11 , Miss Defrenne thereupon brought an appeal before the 3. Article 119 is not a complete Cour du travail, Brussels. Finally, on 23 innovation: it must be viewed both in the April 1975, that court found that only light of internationally recognized the first head of claim required principles and in the light of the EEC interpretation of Article 119 of the Treaty. Treaty and thereupon referred to this Court the questions which we must now At international level Article 119 is the consider. extension, the 'European translation', of Convention No 100 adopted by the In spite of the opinion to the contrary International Labour Organization on expressed by the Auditeur General, the 29 June 1951 'concerning equal Cour du travail dismissed the ap­ remuneration for men and women plications relating to the injury which workers for work of equal value'. The Miss Defrenne claims to have suffered, in Convention has now been ratified by all connexion with pension and grant as a the Member States of the EEC although result of the difference in previous salary some of them ratified it after the entry and the difference in pensionable age into force of the Treaty of Rome (the respectively compared with her male Netherlands in 1971 and Ireland in colleagues. 1974). Belgium, however, had already ratified it on 23 May 1952. The Arrears were claimed only with effect Convention, which came into force a from 15 February 1963 because of the year later, on 23 May 1953, is accordingly five-year limitation rule provided for applicable in all the Member States under Article 2277 of the Belgian Civil although not with effect from the same Code. The reason why the claim does not date. The question whether it is or is not extend beyond 1 February 1966 is that, 'self-executing' has no bearing on the with effect from that date, Sabena, of its interpretation to be placed in Com­ own accord, placed 'hostesses' and munity law on the provision of Article 'stewards' on the same basic rates of pay. 119 of the EEC Treaty which is, essentially, its counterpart. 2. The questions referred to the Court are in the following terms: In the Treaty of Rome Article 119 (1) Does Article 119 of the Treaty of appears in Chapter 1 (Social Provisions) Rome introduce directly into the of Title III Social Policy) of Part Three national law of each Member State (Policy of the Community). of the European Community the principle that men and women It embodies an objective consonant with should receive equal pay for equal that laid down in the preamble to the work and does it therefore, Treaty and subsequently expressed more independently of any national precisely in Article 117, which recognizes

484 DEFRENNE v SABENA

'the need to promote improved working maintain the application of the principle conditions and an improved standard of that men and women should receive living for workers, so as to make possible equal pay for equal work'. their harmonization while the improvement is being maintained'. The principle quoted was, therefore, due Obviously, this harmonization can be to be put into operation before the end achieved only if the standard of living of the first stage, namely, before and working conditions, in particular 1 . those relating to pay, are harmonized not only as between the Member States but The Treaty forms a single entity; it is also within each State and, again, as impossible to lay emphasis on some of between men and women. its provisions and ignore others without upsetting the balance of the whole. As Mr Advocate-General Dutheillet de Lamothe said, Article 119 has a double Thus, in order to prevent any delay objective: 'a social objective … since it whatsoever affecting social policy pend­ leads all the countries of the Community ing transition to the second stage, the Commission addressed to Member States to accept the principle of a basically social nature raised by the ILO and, through them, to all the authorities Convention; but an economic objective, competent to determine rates of pay, a too, for in creating an obstacle to any recommendation, dated 20 July 1960, in which it reminded them of the need to attempt at "social dumping" by means of the use of female labour less well paid fulfil the obligation imposed by Article than male labour, it helped to achieve 119 and indicated the means whereby this aim could be achieved. one of the fundamental objectives of the Common Market, the establishment of a system ensuring that "competition is not But, because, subsequently, the Member distorted"'. States considered that they were not in a position to comply with the prescribed time-limit, the 'conference of Member Confirmation of this view is provided both by the 'preparatory documents' and States' adopted, on 30 December 1961, a resolution on Article 119 in which a by the subsequent attitudes adopted by the Member States. fresh time-table was laid down for the phasing out of differences of treatment and laid down 31 as the The authors of the ECSC Treaty provided that the Community should 'progress­ date by which all discrimination must be abolished. ively bring about conditions which will of themselves ensure the most rational It should be noted that both the distribution of production at the highest recommendation and the resolution possible level of productivity' (Art. 2). In emphasize the need for the Member much clearer terms, the authors of the States to establish, in their own national Treaty of Rome declared (about 20 years legal systems, a means of redress of ago) that 'spontaneous' harmonization of which women can avail themselves in rates of pay as a result of action by the the event of an infringement of Article trade unions and of the progressive 119. This would appear to indicate that, establishment of the Common Market in the view of the Commission and of must be completed by special action on the Member States, Article 119 was not the part of the governments. 'self-executing'.

4. This brings us to the wording of This leads us to the heart of the matter Article 119. The first paragraph reads as and to the question, which we must now follows: 'Each Member State shall during consider, whether Article 119 constitutes the first stage ensure and subsequently a provision having direct effect.

485 OPINION OF MR TRABUCCHI — CASE 43/75

Under the criteria established by the any case partly described in the third case-law of this Court, a Community paragraph of Article 119 (which, in provision produces direct effects so as to addition to. using the term 'same work' confer on individuals the right to enforce for work at piece rates, also refers to pay it in the courts, provided that it is clear for work at time rates as 'the same for the and sufficiently precise in its content, same job"), there is no need to exaggerate does not contain any reservation and is its importance in applying the article. complete in itself in the sense that its application by national courts does not It has been rightly observed that Article require the adoption of any subsequent 119 'does not try to determine when men measure of implementation either by the and women are doing the same work but States or the Community. only to ensure that the sex of the worker is in no way taken into account in Let us consider whether, viewed in the decisions on pay. Whether the work is light of the context and spirit of the the same or different is a question of fact Treaty, the character and content of to be determined in every individual case Article 119 satisfy these conditions. in accordance with the responsibilities assigned to each person concerned and The provision in question places every must not be the subject of an a priori Member State under the unconditional decision any more than there is an a obligation to ensure during the first priori decision that two men placed on stage, and subsequently to maintain, the the same rate of pay perform the same application of the principle that men and work' (Levi Sandri, in Commentario women should receive equal pay for CEE, vol. II, p. 956). equal work. The conclusion may therefore be drawn Although the form of words used: that, as regards the abolition, in con­ 'principle that men and women should nexion with pay, of all discrimination receive equal pay', may seem too vague based on sex, Article 119 imposes an and the meaning of the word 'principle' obligation which is clear, precise and itself not to be very specific, the purpose unconditional. of the rule is nevertheless clear: to prohibit any discrimination to the It must, however, be emphasized that detriment of women with regard to pay. Article 119 does not provide for, or rather does not always necessarily provide It can be argued that, even though for, all possible implications of the Article 119 defines the concept of pay principle of equal pay for men and for the purposes of equality, the women in its fullest sense. The definition given of it is not so complete application of the principle to situations as to exclude all doubt about the precise other than those referred to in the meaning of the rule. Under the case-law aforesaid artcle (cases where the 'same of the Court, however, the fact that the work', namely identical work, is concepts relied upon in a provision performed) lies, without doubt, outside require interpretation by the national the context in which the question of the court, which may, inter alia, avail itself direct applicability of the rule can arise of the procedure in Article 177 of the and more properly falls within the field Treaty, constitutes no obstacle to of social policy the definition and recognition of its direct effect (see the application of which primarily depend judgment in Case 27/67 Fink-Frucht on the initiative and coordinating action [1968] ECR 223 and in Case 41/74 Van of the Community executive and of the Duyn [1974] ECR 1337). Member States.

Again, with regard to the definition of 5. The obligation imposed on the the concept of 'equal work', which is in Member States, to which the rule is

486 DEFRENNE v SABENA

formally addressed, consists of an effect merely because it imposes on the obligation to act subject to a specific States an obligation to act, provided that time-limit (end of the first stage). the obligation is expressed clearly and unconditionally, its tenor is precise and As we know, by the resolution of 31 no real discretion is left to the Member December 1961 the Member States States with respect to the application of determined to extend the time-limit for the provision (see, for example, the full application of the principle of equal judgment in Case 57/65 Lütticke, [1966] pay until 31 December 1964. ECR 205).

As the validity and effect of that act must Apart from cases where work which is be established I must point out that in not identical has to be established as form it constitutes an agreement reached being of equal value, which could between the representatives of the undoubtedly give rise to fairly compli­ Member States meeting in Council; as for cated assessments on the part, in the first its effect, it specifies the substance of place, of the legislature, the application Article 119 by laying down the methods of Article 119 does not necessarily and the time-table to be followed in require the adoption of implementing implementing it. legislation in circumstances (which, in this case, are exclusively the concern of As in the case of the ruling given in the the court making the reference) where judgment of 3 February 1976, in Case work which is undoubtedly identical is 59/75, Manghera, concerning a resol­ differently rewarded on grounds of sex. ution on another subject, there can be no doubt that the said resolution is Difficulties might, of course, be involved powerless to amend the Treaty by in the concept of 'pay'. replacing the clear provision in Article 119 in respect of the time-limit therein Those who drafted Article 119 tried to provided. define this concept. Repeating, on this point word for word the text of Article The resolution must, therefore, be 1 (a) of Convention No 100 Article 119 regarded as an essentially political act provides that ' "pay" means the ordinary expressing the States' concern to solve basic or minimum wage or salary and the problems arising from implemen­ any other consideration, whether in cash tation of Article 119. It does not or in kind, which the worker receives, constitute an independent source of directly or indirectly, in respect of his obligations for the States; such employment from his employer'. obligations stem exclusively from the article of the Treaty. The wording of the Despite this clarification, it will, in my provision under consideration certainly opinion, frequently be necessary to implies action by the States to put the interpret the concept of pay and obligation which they have assumed into especially that of 'any other consider­ full effect. ation'. The Court did this in the first Defrenne case and, in respect of the In view of this the questions arises treatment of dependants, in Case 20/71, whether Article 119 possesses the (Sabbatini (nee Bertoni), [1972] ECR completeness which a provision is 345). required to have in order to be Nevertheless, it seems clear to me that recognized as having direct effect. the ordinary basic wage or salary as set From the precedents established by this out in the salary table or scales must be Court it is clear that an article of the 1 — Translator's note: but not of the English text of the Treaty does not cease to have direct Convention;

487 OPINION OF MR TRABUCCHI — CASE 43/75 treated as pay and that if, in the event, provision under consideration does no there is found to be discrimination solely more than impose a direct obligation on on grounds of sex, this constitutes one of the Member States alone and that it the conditions for application of Article cannot create rights and duties in the 119. All that I need add is that, as is case of individuals. observed by the court making the reference, the difference of FB 12 716 is A subsidiary argument contended for by due to the difference in the 'basic salary the representative of the Commission is scales' applicable to men and women to the effect that, from a purely technical and not to supplementary perquisites, standpoint, Article 119 could enable whether direct or indirect, in cash or in individuals to bring an action which, kind, such as 'flight bonuses' or 'cabin although admissible, would be upheld bar takings'. only if it were based on discrimination for which, as the employer, the State was On this point, too, therefore, I consider responsible or, at least, on systems of that there is nothing standing in the way payment directly fixed by the national of the direct applicability of Article 119 legislative or executive authorities in the in a case such as that on which the country concerned. national court is called upon to rule. The above-mentioned arguments seem to me to misconceive the principles of the 6. But another question arises. In Community legal order which have been contrast to the other articles of the Treaty developed by case-law covering more which the Court has hitherto declared to than twenty years. have immediate effect and which are concerned with matters on which there is To begin with, if we were to accept that a direct legal relationship between the the provision is directly applicable only State and its subjects (customs or taxation against public employers this would, as law and the right of establishment), was emphasized by the agent of the Irish Article 119, despite the fact that it is Government, constitute fresh and restricted to imposing an obligation on unacceptable discrimination between the the States, is primarily concerned with public and private sectors. The legal the relationship between individuals. The status of Sabena and its relationship with discrimination which the provision sets the Belgian State have, therefore, no out to prohibit will, in the majority of relevance to the present dispute. cases, consist of discriminatory action by a private undertaking against women It should also be borne in mind that, workers. under settled and well-known precedents established by this Court, even provisions The State directly intervenes in the fixing addressed to the States alone are, in of rates of pay only in the public sector; certain conditions, capable of creating in the private sector, on the other hand, individual rights which the national pay rates are largely left to be fixed by courts can and must protect. agreement between the independent parties to the contract. The national The decisive factor in determining what authorities might not, therefore, be in a the effects of a Community provision are position, on the basis of this provision in national law is not the identity of alone, forthwith to impose the principle those to whom it is addressed but its of equal pay. To this end it would be nature, which the Court defines on the necessary to adopt appropriate national basis of 'the spirit, the general scheme legislation. and the wording' of the provision itself.

For these reasons, the intervener The object of Article 119 is, within a governments have argued that the specified time, to abolish discrimination

488 DEFRENNE v SABENA of any kind in fixing rates of pay and, 7. I therefore feel able to conclude that moreover, not only discrimination cre­ the principle of equal pay, which by its ated by the laws or regulations of the very nature is of direct concern to Member States but also discrimination individuals, is, within the limits which I produced by collective agreements or have indicated above, capable of individual contracts of employment. producing direct effects in respect of such individuals and enables them to rely It follows that the obligation to observe upon it in the national courts without the principle of equality is imposed not need for it to be subject to adoption of only on the States, inasmuch as the relevant legislative measures by the determination of the pay of government States. servants is concerned but, provided that the requirement stated in the provision is sufficiently clear and precise in meaning Of course, the adoption of administrative to enable it to apply in relation to third or even penal sanctions could only reinforce the direct effectiveness of parties, it also has effects in the field left to trade union organizations and Community laws and would for this individuals in which to conclude their reason be particularly favourable, but the collective or individual contracts. This is main sanction is the inapplicability of due entirely to the provison of the national law or of any other kind of act, Treaty, regardless of other implementing public or private, which conflicts with provisions adopted to this end by the directly applicable Community law. State. Consequently, where previous national When requested to give a ruling on a legislation or regulations, have been private 'regulation' adopted by an repealed or amended only by implication international sporting organization, the through the automatic incorporation of Court stated (in Case 36/74, Walrave Community laws within the national [1974] ECR 1405) that both Article 59 legal system, or where the contracting and Article 48 prohibit not only parties maintain in force collective or discrimination which has its origin in individual contracts which conflict with acts of a public authority but also those Community legislation, it is not arising from 'rules of any other nature necessary, for an acknowledgment of aimed at regulating in a collective the direct effectiveness of the latter, for manner gainful employment and the the said provisions to be formally provision of services'. The attainment of harmonized with the Community laws the fundamental objectives of the Treaty concerned in order that all concerned would in fact be compromised in the may be made aware of the change and absence of 'the abolition of… obstacles any uncertainty as to the law in force resulting from the exercise of their legal may be removed. Here too, formal autonomy by associations or organ­ harmonization would, without doubt, be izations which do not come under public of great value but any doubts, assuming law'. there are any, may be removed by the use It is true that, in contrast to the free of Article 177 of the Treaty; the danger that this Court would be overwhelmed movement of persons, the principle of equal pay is not included amongst the with requests for 'clarification' is an fundamental objectives of the Treaty but argument worthy of consideration only its attainment is of exceptional on grounds of expediency. importance as a step towards 'economic and social progress' and in achieving the Accordingly for the purposes of Article 'constant improvement of the living and 119, there is a very simple and effective working conditions …' (see preamble to method of moving against a discrimi­ the Treaty). nation; it is enough for the national

489 OPINION OF MR TRABUCCHI — CASE 43/75

courts to declare null and void any clause an integral part of the general principles in an individual or collective contract of law and that the protection of such which conflicts with the aforesaid rights within the Community can and provision. Here again, however, we must must be inspired by the constitutional define the precise meaning of the words traditions common to the Member States. 'null and void'. Notwithstanding the In view of this it seems to me that the axiom 'no nullity save as provided for by prohibition of all discrimination based the law', the nullity to which I refer is on sex (particularly on the subject of pay) based on public policy and thus takes protects a right which must be regarded priority over any individual provision of as fundamental in the Community legal the law. On the question of pay, nullity order as it is elsewhere. means that the rate of pay provided for by the clause which is void is In cases where discrimination was based automatically replaced by the higher rate on the criterion of mere residence or of pay granted to male workers. nationality — in Case 33/74 (Van Binsbergen [1974] ECR 1299) and Case There is nothing new in this. The courts 2/74 (Reyners [1974] ECR 631) —the in various Member States have, even in Court declared any discrimination based the face of opposition from management on residence or nationality to be contrary and workers, and even in the absence of to the Treaty. I propose that the Court implementing legislation, so acted in should extend the principle of these order to give effect to the principles of decisions to discrimination based solely equal treatment enshrined in the on considerations of sex, as the Court has constitutions of the countries concerned. already done in the case of Community dependants (see Case 20/71, Sabbatini (nee Bertoni), [1972] ECR 351, and Case The Court has, moreover, recognized 21/74, Airola [1975] ECR 228). other provisions of the Treaty as having direct effect, although they raised much 8. To summarize my comments, at this greater problems (see, for example, point, let me say that the words in Article 95 (1) of the EEC Treaty which is Article 119: 'Each Member State (shall… the subject of the judgment in Case ensure)', taken from Convention No 100 57/65, Lütticke [1966] ECR 205). and which are explained by the fact that the putting into effect of Article 119 It is no more difficult for the national requires, on the part of the authorities of court to disallow a discriminatory the Member States (and of the so-called contractual agreement than to disallow a 'social partners', namely the employers, national law which is incompatible with the workers and their respective organ­ the Treaty or to award compen­ izations), constant action in order to sation to an individual who has suffered ensure that the realization of the damage as the result of such a law. principle is not placed in jeopardy even in the event of a technological Furthermore, in interpreting Article 119, development or a change in economic the Court cannot overlook the fact that policy, have nevertheless a much deeper the principle of equal treatment is significance in the Treaty of Rome; the enshrined in the legal system of Member words refer not only to the Member State States, the majority of which have erected as a sovereign body bound by an it into a principle formally underwritten international treaty, as was also the case by the constitution itself. In its judgment under Convention No 100 but, in of 17 December 1970 in Case 11/70, addition, all the competent authorities of Internationale Handelsgesellschaft the State, including the courts, which ([1970] ECR at p. 1134), the Court stated have a duty to apply the provisions of the that respect for fundamental rights forms Treaty.

490 DEFRENNE v SABENA

It is true that application of the concepts would provide minimum protection, in of 'pay' and of 'work' may give rise to particular through judicial process. The difficulty but it is equally true that 'the Member States were given a year, ending fulfilment [of the obligation] had to be in February 1976, to comply with the made easier by … the implementation of directive and three years, ending in a programme of progressive measures' February 1978, to report to the (judgment of 21 June 1974 in Case 2/74, Commission on its application. Reyners, [1974] ECR 631. The directive quoted did not, however, Undoubtedly, action by the Member avail to amend the original scope of States and by the Community Article 119. All that can be said is that, institutions in the form of legislation, as no one disputes, provisions adopted regulations or administrative measures is under Article 100 (approximation of essential for the reason that, if the laws) can help to make more effective principle of equal treatment were to application of Article 119. apply only to pay in the strict sense of the word or to absolutely identical work, 9. I can now bring the considerations I the practical effect of Article 119 would have mentioned to bear on the national be rather small. law which raised doubts in the minds of the Cour du travail, Brussels. This gives the Member States and the Community institutions enormous scope Article 14 of Royal Decree No 40 of in taking action to put into effect the 24 October 1967, promulgated in principle of non-discrimination laid implementation of the Law of 31 March down in Article 119 without having to 1967 on economic recovery, reads as rely on its direct applicability. follows:

Discrimination against women is, in fact, 'In accordance with Article 119 of the often disguised by the pay structure, the Treaty establishing the European Econ­ classification or description of work, the omic Community, ratified by the Law of special character of labour in certain 2 December 1957, any woman worker spheres, not to mention inequalities due may institute proceedings before the to job training or promotion systems and relevant court for the application of the general working conditions. principle that men and women should receive equal pay for equal work.' The list of studies and investigations carried out at Community level in order The court which has referred the matter to make the principle of equal treatment to the Court of Justice for a preliminary fully effective is an impressive one. ruling seems, therefore, to take the view, in conformity with the explanatory Furthermore, on 10 February 1975, the memorandum to the decree, that women Council adopted under Article 100 a workers have the right to bring directive, submitted to it by the proceedings to compel the employer to Commission on 14 November 1973, on comply with 'individual rights arising the approximation of the laws of the from the principle of equal treatment Member States relating to the application only with effect from 1 , the of the principle of equal pay for men and date when Royal Decree No 40 (Article women 'for the same work or for work to 30) came into force. which equal value is attributed'. The purpose of the directive was to ensure But the fact that, in order to make smooth and effective application of the Article 119 more effective, the Belgian principle of equal pay and indicated in authorities deemed it necessary to make general terms certain measures which express provision for women workers to

491 OPINION OF MR TRABUCCHI — CASE 43/75

take legal action in no way implies that, Under the case-law of this Court, the without that provision, the principle in methods adopted for implementation Article 119 would not have created and of a Community provision cannot did not create individual rights and that jeopardize its uniform application: 'All analogous rights exist solely because and methods of implementation are contrary from the date when national law to the Treaty which would have the recognized the said principle. result of creating an obstacle to the direct effect of Community regulations and of The measure adopted by the Belgian jeopardizing their simultaneous and authorities has no effect whatsoever on uniform application in the whole of the the meaning of Article 119; if we accept Community' (judgment of 7 February that, at least within certain limits, Article 1973 in Case 39/72, Commission v Italy 119 is directly effective as from the end [1973] ECR at p. 114). The national of the first stage, we must recognize that provision in question may have value for the future but it could not affect the the nationals of the original Member States were and are able to avail substance of the principle embodied in Article 119. themselves of it from that date, subject to the laws governing application to the courts for redress and to the law of Finally, I feel justified in reaching the limitation affecting that right. following conclusion: with effect from 1 January 1962, a woman worker in the six original Member States could, purely on It is true that, in Belgium, the King the basis of Article 119, bring 'regularly' refuses to give the force of law proceedings against any infringement to collective contracts which conflict whatever of the principle embodied in with the principle contained in Article the said article. The validity of the action 119. But, since the collective contract would depend on the meaning attributed between Sabena and its employees could to the concepts of 'pay' and of 'equal not be subject to review by the King, the work'. obstacle consisting of the 'independent wishes of employers and employed' and 10. A final argument against the 'direct of the 'freedom to negotiate and enter effect' of Article 119 is put forward by into collective contracts' could not be the Governments of the United surmounted in this way. If there were Kingdom and of the Irish Republic, both anything discriminatory in the contract of whom appear to be peculiarly sensitive and if there were a desire to remove it, to what might be called the 'cost of the this could only be done by the use, operation'. in the words of the explanatory memorandum, of a 'legal fiction'. But Arguments of this kind, however this fiction does not require the consent pressing on grounds of expediency, have of national law; it is merely the legal no relevance in law. This Court did translation into national law of 'the direct not deem it necessary to alter its effect' of the Community provision to be interpretation of Article 95 which, in applied. , resulted in a large number of applications and created difficulties for In my opinion, therefore, a royal decree the fiscal courts. The Court declared: is not necessary in a case such as the This argument is not by itself of such a present one. The principle embodied in nature as to call in question the Article 119 of the Treaty was not correctness of that interpretation' introduced into the Belgian legal system (judgment of 3 in Case 28/67 by the royal decree in question but by Molkerei-Zentrale Westfalen v Haupt­ the law, ratifying the EEC Treaty, which zollamt Paderborn [1968] ECR at p. was approved on 2 December 1957. 153).

492 DEFRENNE v SABENA

On the other hand, in view of the fact ation for 'equal work', the financial that Article 119 is recognized as having consequences should not reach too high direct effect solely in respect of pay, a level, having regard to the effects of properly so called, representing consider­ limitation in the various Member States.

For the foregoing reasons I am of the opinion that the Court should rule as follows:

Inasmuch as Article 119 of the EEC Treaty is concerned with pay in the strict sense of the word and with work which is not merely similar but is the same, the article has, with effect from 1 January 1962, introduced into the national law of the original Member States of the Community the principle of equal pay for men and women, and has by itself directly conferred rights on the workers concerned, which national courts must protect; such protection is not subject to prior adoption of rules for its implementation either by the States or by the Community.

493