4.

We have seen that the court making the order for reference did not confine itself to referring to Article 119 of the EEC Treaty; it also raised the hypothesis that the rule that working conditions should be equal, without discrimination on grounds of sex, may be inferred from a general principle of Community law. We must therefore also examine that hypothesis. In my view that examination should be on the following lines: we must ascertain whether the Community principle that there should be no discrimination, which has been upheld in numerous decisions of the Court of Justice, is so formed, from the point of view of its content and the persons to whom it applies, as to give to each individual within the Community the right not to be discriminated against on grounds of sex in the determination of working conditions. One preliminary point to be clarified is that no prohibition on discrimination in working conditions on the grounds of sex can be drawn, either by deduction or by analogy, from the prohibition of discrimination on grounds of nationality which is expressed in various articles of the EEC Treaty (in general terms in Article 7 and with regard to workers in particular in Article 48 (2)). Nationality is a ground of discrimination quite different from that of sex: each of the two prohibitions can be observed without its entailing a breach of the other. It should also be noted that according to the logic of the Community rules the prohibition on discrimination on grounds of nationality must have a specific nature; it is indeed one of the bases of the Common Market and one which constitutes a condition of its very existence. In short there is a particular reason for the existence of that prohibition, which, in so far as it concerns us, I shall consider solely in the context of the free movement of workers. That is that it extends to foreign workers who are nationals of other Member States the treatment accorded by each Member State to its national workers; such is its content and its scope. It therefore appears to me vain for Miss Defrenne to attempt to draw from the decided cases of the Court of Justice relating to the prohibition on discrimination between workers on grounds of nationality arguments to support the analogous application of the criterion of equality of treatment within such a State between male and female workers. That said, we are now faced with what in my opinion is the most delicate part of the problem: what is the effect in the present instance of the general prohibition on discrimination which has the force of an unwritten principle of Community law? I do not think that a lengthy consideration is necessary to show that the rule that there should be no discrimination is a general principle of the Community legal order. The Court of Justice has referred to it on more than one occasion and has gone so far as to rule that Community measures which conflict with it are invalid. It is a principle contained in the list of fundamental human rights recognized within the Member States and within the context of the European Convention on Human Rights and Fundamental Freedoms; consequently it forms part of Community law and must be protected by the Court of Justice (cf. judgment of 12 November 1969, Case 29/69, Stauder v Ulm [1969] ECR 419; judgment of 17 December 1970, Case 11/70, Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; judgment of 14 May 1974, Case 4/73, Nold v Commission [1974] ECR 491 and the judgment of 28 October 1975, Case 36/75, Rutili v Minister for the Interior [1975] ECR 1219). I may add that in the context of positive law and modern legal thinking the exclusion of discrimination on the ground of sex is one of the fundamental features of the principle in question. However the significance of the protection of fundamental rights on a Community plane is not the same as on the plane of national law. In the aforementioned judgment in th Internationale Handelsgesellschaft case the Court of Justice emphasized that ‘the protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the Community’. In my view two conclusions are to be drawn from that statement. First the respect for fundamental rights is a limitation on all Community acts: any measure whereby the powers of the Community institutions are exercised is subject to that limitation and in that sense the entire structure of the Community is under an obligation to observe that limitation. Secondly where directly applicable Community measures exist (by the effect of the Treaties of secondary legislation) they must be interpreted in a manner which accords with the principle that human rights must be respected. I do not think that it is possible to say more than that. In particular, legal relationships which are left within the powers of the national legislature must be understood to be subject to the constitutional principle that human rights must be respected which applies in the State to which the relationship is subject, in so far as the internal provisions are not replaced by directly applicable Community provisions. Turning to the problem facing us here we find that the control of working conditions other than pay (and paid holidays) has up to now been left to the national legislative bodies (and the Community has only intervened by means of Council Directive No 76/207 to which I shall refer presently). Thus it is not possible to derive from the Community principle that there should be no discrimination a directly applicable rule that working conditions should be the same for male and female workers; on the contrary only where it is possible to derive from a specific Community measure a directly applicable provision relating to working conditions will that provision have to be interpreted — if it is not sufficiently explicit on this point — in conformity with the general principle that there should be no discrimination.