2.

The Court of Appeal asks, first, whether the principle of equal pay for men and women for “equal work”, referred to in Article 199 of the EEC Treaty and Article 1 of the Council directive cited above, is confined to cases in which the men and women concerned are contemporaneously engaged on equal work within the same undertaking. A restriction on the application of the said principle of Article 119 in the sense indicated by that question is not warranted by the wording of that provision which confines itself to laying down, as a condition for its application, similarity in the services rendered, without in fact mentioning any criterion of contemporaneity. In addition, the above-cited judgment of 8 April 1976 in the Defrenne case, in holding Article 119 to be directly applicable, refers to the case “where men and women receive unequal pay for equal work carried out in the same establishment” (paragraph 22 of the Decision) without requiring contemporaneity in the work in question. Nor is the restriction mentioned justified by the. objectives of Article 119. As is clearly stated in the aforementioned Defrenne judgment (paragraphs 8 to 10 of the Decision), “Article 119 pursues a double aim. First, in the light of the different stages of the development of social legislation in the various Member States, the aim of Article 119 is to avoid a situation in which undertakings established in States which have actually implemented the principal of equal pay suffer a competitive disadvantage in intra-Community competition as compared with undertakings established in States which have not yet eliminated discrimination against women workers as regards pay. Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty.” The Commission has correctly pointed out that if an undertaking could, by replacing its male employees with female employees, by that fact alone pay lower wages, that would result in its having an unfair competitive advantage over undertakings which contemporaneously employ men and women to carry out the work in question. Further, if the only reason for a difference in the level of remuneration for the same work performed for the same undertaking at different times was the difference in sex, female workers would be unjustly discriminated against and placed at a disadvantage in comparison with male workers, which would be manifestly contrary to the social objectives of the legislation in question. The British Government submitted in the course of these proceedings that, in order to apply the said principle contained in Article 119 to equal work performed at different times, it would be necessary to adopt legislation defining the limitative criteria in terms of time and the appropriate reference period for the comparison. In the absence of such details Article 119 could not apply to work carried out at different times. In support of that proposition the British Government referred to the distinction drawn by the Court, once again in the abovementioned Defrenne judgment, between “first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the article in question, and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community or national character” (paragraph 18 of the Decision). However, what led the Court to make that distinction and to hold that Article 119 had no direct effect in regard to the second type of discrimination was, above all, the existence of cases in which it is impossible to compare the work of men and women, as occurs, for example, when discrimination takes place not simply within the same establishment but in relation to whole sectors of industry which are characterized by exclusively or predominantly female employment, not to speak of the disguised discrimination which arises by virtue of restrictions on access by women to certain posts or levels of employment. Direct comparability between the functions performed by employees of both sexes for the same undertaking is not, on the other hand, prevented by the fact that the services are rendered at different times; and detailed legislation is surely not necessary to enable a court to establish whether work is “equal” within the meaning of the first paragraph of Article 119. In order to make such an assessment it is necessary only that there be ascertained, in each individual case, certain matters of fact, namely as to whether the tasks performed by workers of both sexes are comparable. That manifestly comes within the field of the direct application of Article 119, as is made clear by the Defrenne judgment (paragraphs 16 to 18 of the Decision). Difficulties may arise in a case where the period of time which has elapsed between the two periods of employment in question is such as to render a comparison between the two remunerations not reasonably possible, given the change in general economic conditions and, especially, the particular conditions of the employer. The adoption of a more restrictive incomes policy may also affect earnings from one day to the next. But in cases of that kind the difference in treatment would have an objective justification in the changing general or particular economic conditions just mentioned: there would thus be no longer any ground for speaking of unjustified and arbitrary discrimination in pay between men and women employees. All depends, even in this regara, upon the ascertainment of the facts, which is the task of the national tribunal. It is permissible to suppose, for example, that an undertaking wishing to show that it was constrained by economic circumstances to pay a woman employee less than the man who preceded her in the same post will rely upon facts relating to the general level of wages inside, and possibly outside, the undertaking. I would note incidentally that, in tne present case, the court making the reference held that no facts other than the lower remuneration paid to Mrs Smith in comparison with her predecessor and the almost total identity of the tasks entrusted to both of them were to be taken into account. These considerations lead me to hold that the principle of equal pay without discrimination on grounds of sex for equal work for the same undertaking (contained in Article 119 of the EEC Treaty) may not be restricted to cases in which the work is contemporaneously carried out by male and female workers.