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 February 1968. 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 February 1970 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 May 1971, 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 October 1963, 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 March 1968, Earlier, on 15 March 1963, 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 February 1963 and individual contract of the person 1 February 1966 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 December 1970, 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 April 1971, 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 January 1962. 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 December 1964 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.