4.

In my opinion in this purely legal debate, the Commission's position appears to be more sound, in particular by reason of the requirements of clarity and legal certainty to which the decisions of the Court attach great importance in cases where a State is charged with failing to fulfil its obligations. It is true that to date the case-law has related to administrative practices which, the Court has held, “cannot ... be regarded as a proper fulfilment of the obligation imposed on Member States to which a directive is addressed by virtue of Article 189 of the Treaty”, since those practices “by their nature can be changed as and when the authorities please and ... are not publicized widely enough”. ( 2 ) But it seems to me that because of the general nature of its terms, the following sentence, taken from the judgment of the Court of 1 March 1983 in Case 300/81, also applies to this case: “It is important... for each Member State to implement the directive in question in a manner which fully satisfies the requirements of clarity and legal certainty which the directive is intended to achieve in the interests”, in this case, of women and men regarding access to employment, training, advancement and working conditions. ( 3 ) The terms of Articles 3, 4 and 5 of the directive at issue in this case seem to me to leave Member States no greater margin of discretion regarding the implementation thereof than those of the directive on credit establishments at issue in Case 300/81. Moreover, a situation in which possibly discriminatory provisions continue to exist in documents such as collective agreements, the internal rules of undertakings and the rules governing the independent occupations and professions is just as ambiguous — above all for workers who in most cases have no legal training — as the situation created by the implementation of a directive merely by means of administrative practices. It should also be noted that workers have easier access to collective agreements, the internal rules of undertakings and the rules governing the independent occupations and professions than to Directive 76/207 or to the United Kingdom laws depriving those documents, in general, of legally binding force. Thus, workers may believe that because their contracts of employment reproduce possibly discriminatory provisions from the types of document referred to they are legal and may not be challenged at law and the workers may therefore be deprived of the advantages of a directive which was in fact adopted for their benefit. In order to avoid such risks of confusion, the best course is to make it possible for such discriminatory provisions to be removed from those documents, as required by the directive. That course of action is greatly facilitated by the fact that it has already been followed with regard to one of the areas covered by the directive, namely that of working conditions. As has been seen, section 3 of the Equal Pay Act gives the Central Arbitration Committee the task of declaring what amendments need to be made in order to remove any discrimination in that regard where a collective agreement (or an employer's pay structure) contains provisions specifically applicable only to male workers or only to female workers. What is possible with regard to working conditions must be possible with regard to the other matters referred to in the directive. As regards the specific provisions of the Act, which make possible the annulment of any discriminatory clauses of certain types contained in the internal rules of an undertaking or the rules governing an independent occupation or profession, it is sufficient to note that, regardless of their actual scope, they do not cover the whole area covered by the Community provision. In the circumstances, the first complaint made by the Commission seems to me to be well founded.