Opinion of Mr Advocate General Lenz delivered on 10 November 1987. - Mary Murphy and others v An Bord Telecom Eireann. - Reference for a preliminary ruling: High Court - Ireland. - Equal pay for men and women. - Case 157/86.



European Court reports 1988 Page 00673

Swedish special edition Page 00349

Finnish special edition Page 00353



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The central question in the case before the Court this morning is whether the principle of "equal pay for equal work" may also be applied to a situation where a lower wage is paid for work of a higher value .

2 . Two further questions relate to the legal basis of that principle and its direct applicability .

3 . These questions arose in the course of proceedings before the Irish courts concerning the Anti-Discrimination ( Pay ) Act 1974 which entered into force on 31 December 1975 .

The first problem I have to consider is as follows .

4 . Is there a danger that, by giving a reply to these questions, the Court will be drawn into a dispute which has no connection with provisions of Community law, namely Article 119 of the EEC Treaty in this case? In the light of the hearing, I consider that such a danger can be discounted . The

High Court of Ireland has referred these questions in the course of proceedings under the Anti-Discrimination ( Pay ) Act . It is for that court alone to decide whether those proceedings concern the interpretation of the principle of "equal pay for equal work ". It is not for this Court to verify the matter . Nor have any factors become apparent such as to cast doubt on that point .

5 . In the second place it is evident that in particular the question whether this case is one of "sex discrimination" has not been decided yet . The questions referred to the Court of Justice are, however, of a general nature and may be answered without a decision on those factual issues which are a matter for the Irish courts . I may therefore turn to the reply to those questions .

Question 1

6 . The first question is as follows :

"Does the Community law principle of equal pay for equal work extend to a claim for equal pay on the basis of work of equal value in circumstances where the work of the claimant has been assessed to be of higher value than that of the person with whom the claimant sought comparison?"

7 . The High Court and the respondent doubt whether the Community law principle of equal pay is applicable, above all because the Equality Officer

found that the case did not concern like work or work of equal value and that finding was confirmed by the higher courts . In fact it must be assumed that the appellants' work is of higher value than that of the stores labourer with which a comparison was made . Consequently, a strict interpretation of the wording of the principle laid down in Article 119 of the EEC Treaty indicates that that principle is not applicable . On the basis of such an interpretation, the respondent in the main proceedings has contended that the principle of equal pay cannot be applied in a case such as this since that would lead to equal pay for unequal work which would be "unjust" and "illogical ".

8 . Whether such a view is correct according to Irish law is not to be decided here . However, it has been stated that the Anti-Discrimination ( Pay ) Act was passed in order to implement the Community law principle of "equal pay for equal work ". The representative of the appellants in the main proceedings pointed out in the course of the hearing that the Anti-Discrimination ( Pay ) Act 1974 was passed in order to implement Directive 75/117/EEC and that it was therefore brought into force on 31 December 1975 . The Act should consequently be interpreted in accordance with Community law . However, under Community law the concept of "equal work" includes "work of equal value" ( 1 ) and that must be taken into account in applying the law .

9 . It must be stressed that the application of the principle of equal pay is not sought in this case for the purposes of achieving proportionality between work and pay . The claim of the appellants in the main proceedings for pay which is equal to that of the stores labourer in question represents a claim for less than equal pay for equal work .

10 . The Court of Justice has already ruled in the Defrenne case ( 2 ) judgment that the principle of equal pay laid down in Article 119 ofthe EEC Treaty is directly applicable . Since then it has confirmed that ruling and defined it more precisely . ( 3 ) According to that consolidated case-law, Article 119 of the EEC Treaty is directly applicable to all forms of discrimination which may be identified solely with the aid of the criteria of "equal work" and "equal pay" referred to by that provision, without national or Community measures being required to define those criteria with greater precision in order to permit of their application . Among the forms of discrimination which may be thus identified by the courts, the Court has mentioned, in particular, cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private . ( 4 )

11 . The emphasis laid on cases where discrimination may be identified because unequal pay is received for equal work does not mean that Article 119 applies only to such situations . Direct discrimination may also arise in other circumstances .

12 . If, in the case before the Court, the difference in pay is based on the sex of the workers, that would constitute direct discrimination identifiable as a result of an analysis on the basis of the criteria ofequal work and equal pay . As the Irish Government rightly stated, ( 5 ) the principle of equal pay means no more than that a person shall not be paid less for the same work or, by necessary implication, for work of greater value than a worker of the opposite sex .

13 . Consideration of the objective of Article 119 of the EEC Treaty also indicates that it is directly applicable . This point was made by the Commission . The objectives of Article 119 are twofold : to ensure equality of competition for undertakings within the Community and to further social aims .

14 . ( a ) Since the application of the principle of equal pay is intended to prevent competitive disadvantages for traders in Member States where the principle of equal pay has already been implemented, the position must be the same where equal pay is claimed for work of higher value . Otherwise the unwanted distortion of competition would be permitted in a more pronounced form .

15 . ( b ) The social purpose of the provision would also be negated if Article 119 were not applied to the circumstances of this case . Even the respondent in the main proceedings has admitted that it is unjust for lower pay to be received for work of higher value . Such inequality of treatment

based on sex is hardly reconcilable with the social progress which is one of the aims of the EEC Treaty . ( 6 )

16 . The legislative purpose of Article 119 of the EEC Treaty therefore requires that provision to be applied to the case at issue . Any other conclusion would undermine the effectiveness (" effet utile ") of the provision . As the Irish Government has rightly stated, ( 7 ) an employer would otherwise be able to escape his obligation to treat men and women workers equally by assigning additional or more onerous duties to workers of a particular sex, who could then be paid a lower wage . If such action were held to be compatible with Article 119 the effect would be to institutionalize the possibility of abuse .

17 . I therefore come to the conclusion that the reply to the first question must be in the affirmative .

Question 2

"If the answer to Question 1 is in the affirmative, is that answer dependent on the provisions of Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women?"

18 . It follows from my comments concerning the first question that the principle of equal pay for equal work is derived directly from Article 119 of

the EEC Treaty . I have also stated that the claim for equal pay for work of higher value is covered by that principle . Consequently, there is no need for recourse to Article 1 of Council Directive 75/117/EEC of 10 February 1975 in order to answer the question before the Court . It must also be pointed out that Article 1 does not constitutean extension of the principle laid down in Article 119 of the EEC Treaty . In particular, it "in no way alters the content or scope of that principle ". ( 8 ) Article 1 of the directive which, by reference to the concept "work of equal value", goes beyond the wording of Article 119 of the EEC Treaty, provides further details regarding the material scope of the principle ( 9 ) and is intended essentially to facilitate the practical application of Article 119 .

19 . The reply to the second question must therefore be in the negative .

Question 3

"If so, is Article 1 of the said directive directly applicable in Member States?"

20 . The question whether Article 1 of the directive is directly applicable is redundant since the provisions in Article 1 concerning Article 119 of the EEC Treaty form part of directly applicable Community law, as the Court of Justice has already held . ( 10 )

Costs

21 . The costs incurred by the Irish Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since this case is, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that court .

Conclusion

Finally, I propose that the questions referred to the Court for a preliminary ruling should be answered as follows .

22 . "The Community law principle of equal pay for equal work which is derived from Article 119 of the EEC Treaty also applies to a claim for equal pay for work of a higher value than that done by the person with whom a comparison is made ."

(*) Translated from the German .

( 1 )

See Article 1 of Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, Official Journal 1975, L 45, p . 19 .

( 2 ) Judgment of 8 April 1976 in Case 43/75 Defrenne v Société anonyme belge de navigation aérienne Sabena (( 1976 )) ECR 455 .

( 3 ) See judgment of 27 March 1980 in Case 129/79 Macarthys Limited v Wendy Smith (( 1980 )) ECR 1276 and judgment of 31 March 1981 in Case 96/80 J . P . Jenkins v Kingsgate Limited (( 1981 )) ECR 911 .

( 4 ) See the aforementioned judgments .

( 5 ) See page 10 of the Report for the Hearing .

( 6 ) See the Court' s judgment in Case 43/75 paragraph 10 of the decision .

( 7 ) See page 9 of the Report for the Hearing .

( 8 ) See the Court' s judgment in Case 96/80, paragraph 22 of the decision .

( 9 ) See the Court' s judgment in Case 43/75, paragraph 54 of the decision .

( 10 )

See the abovementioned judgments of the Court in Cases 43/75 and 96/80 .