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DEFRENNE V SABENA

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DEFRENNE V SABENA JUDGMENT OF 8. 4. 1976 — CASE 43/75 1962, the end of the first stage effect of Article 119 or of of the transitional period. modifying its effect in time. Without prejudice to its possible 3. Important considerations of legal effects as regards encouraging certainty affecting all the interests and accelerating the full involved, both public and private, implementation of Article 119, the make it impossible in principle to Resolution of the Member States reopen the question of pay as regards of 31 December 1961 was the past. The direct effect of Article ineffective to make any valid 119 cannot be relied on in order to modification of the time-limit support claims concerning pay fixed by the Treaty. Apart from periods prior to the date of this any specific provisions, the Treaty judgment, except as regards those can only be modified by means of workers who have already brought the amendment procedure carried legal proceedings or made an out in accordance with Article equivalent claim. 236. 4. Even in the areas in which Article 119 (b) In the absence of transitional has no direct effect, that provision provisions, the principle that men cannot be interpreted as reserving to and women should receive equal the national legislature exclusive pay has been fully effective in the power to implement the principle of new Member States since the entry equal pay since, to the extent to into force of the Accession Treaty, which such implementation is that is, since 1 January 1973. The necessary, it may be achieved by a Council Directive No 75/117 was combination of Community and incapable of diminishing the national provisions. In Case 43/75 Reference to the Court under Article 177 of the EEC Treaty by the Cour du Travail (Labour Court), Brussels, for a preliminary ruling in the action pending before that court between GABRIELLE DEFRENNE, former air hostess, residing in Brussels-Jette, and SOCIÉTÉ ANONYME BELGE DE NAVIGATION AÉRIENNE SABENA, the registered office of which is at Brussels, on the interpretation of Article 119 the EEC Treaty, THE COURT composed of: R. Lecourt, President, H. Kutscher and A. O'Keeffe, Presidents of Chambers, A.M. Donner, J. Mertens de Wilmars, P. Pescatore and M. Sørensen, Judges, Advocate-General: A. Trabucchi Registrar: A. Van Houtte gives the following 456 DEFRENNE v SABENA JUDGMENT Facts The facts of the case, the procedure and of Brussels on 13 March 1968 for the observations submitted under Article compensation for the loss she had 20 of the Protocol on the Statute of the suffered in terms of salary, allowance on Court of Justice of the EEC may be termination of service and pension as a summarized as follows: result of the fact that air hostesses and male members of the air crew performing identical duties did not I — Facts and written procedure receive equal pay. Miss Gabrielle Defrenne was engaged as In a judgment given on 17 December an air hostess by the Société Ano­ 1970 the Tribunal du travail of Brussels nyme Belge de Navigation Aérienne dismissed all Miss Defrenne's claims as (hereinafter referred to as Sabena) on 10 unfounded. December 1951. On 1 October 1963 her employment was confirmed by a new On 11 January 1971 Miss Defrenne contract of employment which gave her appealed from this judgment to the Cour the duties of 'Cabin Steward and Air du Travail of Brussels. Hostess — Principal Cabin Attendant'. In a judgment given on 23 April 1975 Miss Defrenne gave up her duties on 15 the Fourth Chamber B of the Cour du February 1968 in pursuance of the sixth travail of Brussels upheld the judgment paragraph of Article 5 of the contract of at first instance on the second and third heads of claim. employment entered into by air crew employed by Sabena, which stated that As regards the first head of claim (arrears contracts held by women members of the of salary) the court decided, in pursuance crew shall terminate on the day on which of Article 177 of the EEC Treaty, to stay the employee in question reaches the age the proceedings until the Court of of 40 years. Justice had given a preliminary ruling on When Miss Defrenne left she received an the following questions: allowance on termination of service. 1. Does Article 119 of the Treaty of Rome introduce directly into the On 9 February 1970 Miss Defrenne national law of each Member State of brought an action before the Conseil the European Community the d'État of Belgium for the annulment of principle that men and women should the Royal Decree of 3 November 1969 receive equal pay for equal work and which laid down special rules governing does it, therefore, independently of the acquisation of the right to a pension any national provision, entitle workers by air crew in civil aviation. to institute proceedings before national courts in order to ensure its This action gave rise, following a request observance, and if so as from' what for a preliminary ruling, to a judgment of date? the Court of Justice of 25 May 1971 2. Has Article 119 become applicable in (Case 80/70 [1971] ECR 445). The the internal law of the Member States Conseil d'État dismissed the application by virtue of measures adopted by the by a judgment of 10 December 1971. authorities of the European Economic Miss Defrenne had previously brought Community (if so, which, and as from an action before the Tribunal du travail what date?) or must the national 457 JUDGMENT OF 8. 4. 1976 — CASE 43/75 legislature be regarded as alone (b) The terms of Article 119 are clear competent in this matter? and simple. It stipulates a duty to take action, the significance of which is The judgment of the Cour du travail of unambiguous. Brussels was received at the Court Registry on 2 May 1975. (c) The Member States are bound by the obligation to respect the principle of In accordance with Article 20 of the equal, pay, the fact that they are entitled Protocol on the Statute of the Court of to adopt provisions of a legal, economic Justice of the EEC written observations or administrative nature in order to were lodged on 14 July 1975 by the implement this obligation in no way Commission of the European means that nationals and, in particular, Communities and Miss Defrenne, the women workers have to wait for the State appellant in the main action, on 21 July to whose jurisdiction they are subject to by the Government of the United take an initiative in this direction before Kingdom of Great Britain and Northern they are able to claim that Article 119 be Ireland and on 25 July by the applied in their favour. The' criteria laid Government of Ireland. down by the case-law of the Court of Justice show that Article 119 is capable of having a direct effect on relationships II — Written observations sub­ between the State and women workers. mitted to the Court (d) As regards the terms used in Article A — The first question 119, it must be remembered that the Court of Justice has ruled that the fact Miss Defrenne, the appellant in the main that it is the Member States which are action, considers that an individual right designated as subject to duties does not to equal pay vests in her directly under imply that their citizens cannot benefit Article 119 of the EEC Treaty, therefrom. independently of Article 14 of Royal Decree No 40 of 24 October 1967 on the The nature of the obligation is employment of women, which provides unequivocal: the principle of equal pay is that 'any woman worker may institute quite clear and has only one meaning. proceedings before the relevant court for The Member States have no discretion in the application of the principle that men this respect. It also represents the and women should receive equal pay for application of a general principle of equal work'. equality which forms part of a philosophy common to the Member (a) Article 119 provides that all the States. Member States shall ensure the application of the general principle of As regards the effectiveness of Article non-discrimination between workers on 119 it must be remembered that this ground of sex. It involves a duty to bring Article is only effective to the extent to about a specific result which must be which the principle of equal pay applies complied with during the first stage of to citizens of the Member States. Women the transitional period and subsequently workers have a clear interest in invoking maintained. it and it represents one of the numerous applications of the principle of equal It does not require, but does not rule treatment on which the EEC Treaty is out, the intervention of either the founded. Community or national authorities for the purpose of implementing the Article 119 necessarily has a direct effect. principle of equal pay for equal work. National courts are obliged to apply it in 458 DEFRENNE v SABENA the cases before them in the same way as Article 119 does not contain a the executive is bound to respect it, comprehensive definition of the in particular in direct administrative principle of equal pay for equal work. action. The very use of the word 'principle' indicates that it is concerned with a Thus, in the light of the criteria laid concept of a very general nature. It is for down by the case-law of the Court of this reason that Article 1 of Council Justice, Article 119 must be regarded as Directive No 75/117 of 10 February 1975 having effect.
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