Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena.
Date: 1976-04-08
9 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 PRINCIPLE 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 .
10 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 .
11 THIS AIM IS ACCENTUATED BY THE INSERTION OF ARTICLE 119 INTO THE BODY OF A CHAPTER DEVOTED TO SOCIAL POLICY WHOSE PRELIMINARY PROVISION , ARTICLE 117 , MARKS ' THE NEED TO PROMOTE IMPROVED WORKING CONDITIONS AND AN IMPROVED STANDARD OF LIVING FOR WORKERS , SO AS TO MAKE POSSIBLE THEIR HARMONIZATION WHILE THE IMPROVEMENT IS BEING MAINTAINED ' .
12 THIS DOUBLE AIM , WHICH IS AT ONCE ECONOMIC AND SOCIAL , SHOWS THAT THE PRINCIPLE OF EQUAL PAY FORMS PART OF THE FOUNDATIONS OF THE COMMUNITY .
15 IN PARTICULAR , SINCE ARTICLE 119 APPEARS IN THE CONTEXT OF THE HARMONIZATION OF WORKING CONDITIONS WHILE THE IMPROVEMENT IS BEING MAINTAINED , THE OBJECTION THAT THE TERMS OF THIS ARTICLE MAY BE OBSERVED IN OTHER WAYS THAN BY RAISING THE LOWEST SALARIES MAY BE SET ASIDE .
18 FOR THE PURPOSES OF THE IMPLEMENTATION OF THESE PROVISIONS A DISTINCTION MUST BE DRAWN WITHIN THE WHOLE AREA OF APPLICATION OF ARTICLE 119 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 .
21 AMONG THE FORMS OF DIRECT DISCRIMINATION WHICH MAY BE IDENTIFIED SOLELY BY REFERENCE TO THE CRITERIA LAID DOWN BY ARTICLE 119 MUST BE INCLUDED IN PARTICULAR THOSE WHICH HAVE THEIR ORIGIN IN LEGISLATIVE PROVISIONS OR IN COLLECTIVE LABOUR AGREEMENTS AND WHICH MAY BE DETECTED ON THE BASIS OF A PURELEY LEGAL ANALYSIS OF THE SITUATION .
22 THIS APPLIES EVEN MORE IN CASES WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE , WHETHER PUBLIC OR PRIVATE .
24 IN SUCH SITUATION , AT LEAST , ARTICLE 119 IS DIRECTLY APPLICABLE AND MAY THUS GIVE RISE TO INDIVIDUAL RIGHTS WHICH THE COURTS MUST PROTECT .
31 INDEED , AS THE COURT HAS ALREADY FOUND IN OTHER CONTEXTS , THE FACT THAT CERTAIN PROVISIONS OF THE TREATY ARE FORMALLY ADDRESSED TO THE MEMBER STATES DOES NOT PREVENT RIGHTS FROM BEING CONFERRED AT THE SAME TIME ON ANY INDIVIDUAL WHO HAS AN INTEREST IN THE PERFORMANCE OF THE DUTIES THUS LAID DOWN .
39 IN FACT , SINCE ARTICLE 119 IS MANDATORY IN NATURE , THE PROHIBITION ON DISCRIMINATION BETWEEN MEN AND WOMEN APPLIES NOT ONLY TO THE ACTION OF PUBLIC AUTHORITIES , BUT ALSO EXTENDS TO ALL AGREEMENTS WHICH ARE INTENDED TO REGULATE PAID LABOUR COLLECTIVELY , AS WELL AS TO CONTRACTS BETWEEN INDIVIDUALS .
40 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT THE PRINCIPLE OF EQUAL PAY CONTAINED IN ARTICLE 119 MAY BE RELIED UPON BEFORE THE NATIONAL COURTS AND THAT THESE COURTS HAVE A DUTY TO ENSURE THE PROTECTION OF THE RIGHTS WHICH THIS PROVISION VESTS IN INDIVIDUALS , IN PARTICULAR AS REGARDS THOSE TYPES OF DISCRIMINATION ARISING DIRECTLY FROM LEGISLATIVE PROVISIONS OR COLLECTIVE LABOUR AGREEMENTS , AS WELL AS IN CASES IN WHICH MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK WHICH IS CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE , WHETHER PRIVATE OR PUBLIC .

THE SECOND QUESTION ( IMPLEMENTATION OF ARTICLE 119 AND POWERS OF THE COMMUNITY AND OF THE MEMBER STATES )
54 THIS DIRECTIVE PROVIDES FURTHER DETAILS REGARDING CERTAIN ASPECTS OF THE MATERIAL SCOPE OF ARTICLE 119 AND ALSO ADOPTS VARIOUS PROVISIONS WHOSE ESSENTIAL PURPOSE IS TO IMPROVE THE LEGAL PROTECTION OF WORKERS WHO MAY BE WRONGED BY FAILURE TO APPLY THE PRINCIPLE OF EQUAL PAY LAID DOWN BY ARTICLE 119 .
65 THE REPLY TO THE SECOND QUESTION SHOULD THEREFORE BE THAT THE APPLICATION OF ARTICLE 119 WAS TO HAVE BEEN FULLY SECURED BY THE ORIGINAL MEMBER STATES AS FROM 1 JANUARY 1962 , THE BEGINNING OF THE SECOND STAGE OF THE TRANSITIONAL PERIOD , AND BY THE NEW MEMBER STATES AS FROM 1 JANUARY 1973 , THE DATE OF ENTRY INTO FORCE OF THE ACCESSION TREATY .
68 EVEN IN THE AREAS IN WHICH ARTICLE 119 HAS NO DIRECT EFFECT , THAT PROVISION CANNOT BE INTERPRETED AS RESERVING TO THE NATIONAL LEGISLATURE EXCLUSIVE POWER TO IMPLEMENT THE PRINCIPLE OF EQUAL PAY SINCE , TO THE EXTENT TO WHICH SUCH IMPLEMENTATION IS NECESSARY , IT MAY BE RELIEVED BY A COMBINATION OF COMMUNITY AND NATIONAL MEASURES .

THE TEMPORAL EFFECT OF THIS JUDGMENT
72 HOWEVER , IN THE LIGHT OF THE CONDUCT OF SEVERAL OF THE MEMBER STATES AND THE VIEWS ADOPTED BY THE COMMISSION AND REPEATEDLY BROUGHT TO THE NOTICE OF THE CIRCLES CONCERNED , IT IS APPROPRIATE TO TAKE EXCEPTIONALLY INTO ACCOUNT THE FACT THAT , OVER A PROLONGED PERIOD , THE PARTIES CONCERNED HAVE BEEN LED TO CONTINUE WITH PRACTICES WHICH WERE CONTRARY TO ARTICLE 119 , ALTHOUGH NOT YET PROHIBITED UNDER THEIR NATIONAL LAW .
74 IN THESE CIRCUMSTANCES , IT IS APPROPRIATE TO DETERMINE THAT , AS THE GENERAL LEVEL AT WHICH PAY WOULD HAVE BEEN FIXED CANNOT BE KNOWN , IMPORTANT CONSIDERATIONS OF LEGAL CERTAINTY AFFECTING ALL THE INTERESTS INVOLVED , BOTH PUBLIC AND PRIVATE , MAKE IT IMPOSSIBLE IN PRINCIPLE TO REOPEN THE QUESTION AS REGARDS THE PAST .
75 THEREFORE , THE DIRECT EFFECT OF ARTICLE 119 CANNOT BE RELIED ON IN ORDER TO SUPPORT CLAIMS CONCERNING PAY PERIODS PRIOR TO THE DATE OF THIS JUDGMENT , EXCEPT AS REGARDS THOSE WORKERS WHO HAVE ALREADY BROUGHT LEGAL PROCEEDINGS OR MADE AN EQUIVALENT CLAIM .